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Cite as: [2012] NICA 26

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Holden, R v [2012] NICA 26 (29 June 2012)

    Neutral Citation no. [2012] NICA 26 Ref: MOR8543
    Judgment: approved by the Court for handing down Delivered: 29/06/12
    (subject to editorial corrections)*    


    Before: Morgan LCJ, Girvan LJ and Coghlin LJ


    [1] This is an appeal by way of reference from the Criminal Cases Review Commission (CCRC) pursuant to the powers contained in Part II of the Criminal Appeal Act 1995. The appellant was convicted of the capital murder of Private Frank Bell on 19 September 1973. He was sentenced to death but the sentence was subsequently commuted to life imprisonment. He was also convicted of possession of a firearm and ammunition with intent contrary to Section 14 of the Firearms Act (Northern Ireland) 1969 for which he received a sentence of ten years imprisonment. He was subsequently released on licence in 1989.

    [2] The reference was made on the grounds that there is a real possibility that:-

    At the end of the hearing we indicated that the appeal would be allowed. These are our reasons.


    [3] At about 14.30 hours on Sunday, 17 September 1972 six soldiers from the 2nd Battalion, Parachute Regiment were on foot patrol in Springfield Avenue, Springhill, Belfast. A shot was fired at them striking Private Frank Bell. He died three days later from his resulting head injuries. Witnesses at the scene of the shooting reported hearing a single shot fired. No post mortem was carried out and the bullet was not recovered from the scene of the shooting.

    [4] Early in October 1972 a rifle with a magazine containing seven rounds of ammunition was found at the home of Patrick McManus. Subsequently, at 0045 hours on 16 October 1972, the Army arrested the appellant at his home under Regulation 11 Civil Authorities (Special Powers) Act (Northern Ireland) 1922. He was taken to the Army post at Blackmountain School arriving at approximately 0100 hours.

    [5] The appellant was interviewed by Sergeant Rowntree of the 1st Battalion of the Parachute Regiment between 0130 and 0430 hours. According to Sergeant Rowntree's account the appellant was asked about his activities at the time Private Bell was shot and initially he gave an alibi. The appellant subsequently admitted to being a member of B Company, 2nd Battalion, Provisional IRA and to having shot Private Bell. Between 0430 and 0445 hours this confession was allegedly repeated to Captain Milton who made a note of the interview.

    [6] The appellant remained in military custody until 0545 when the Royal Military Police (RMP) took custody of him. He was taken by the RMP to Castlereagh Holding Centre where he was handed over to the Royal Ulster Constabulary arriving at 0635. At Castlereagh the appellant was cautioned and interviewed between 11.20 and 11.50 by Detective Sergeant Fitzpatrick, accompanied by Detective Sergeant Caskey, during which time it was alleged that he dictated a statement which he signed in the following terms:-

    "On Sunday afternoon 17 September, 1972 about 2.30 pm I shot a soldier in Springfield Avenue. I was in an alleyway at the side of the shops opposite Corpus Christi Church and I fired one shot from a .303 rifle. After I shot the soldier I ran away and I hid the rifle at the back of Corry's wall. At that time I was a member of the Provisional IRA and I was ordered by the OC to carry out a sniping job on the soldiers. A fellow from the Fianna told me that there was a patrol walking up Springfield Avenue. A girl brought the rifle to me to the alleyway beside the shops where I was positioned. The gun was loaded and had eight rounds in it. They left me to do the shooting. I do not know the names of these people but I know them to see. Since I shot the soldier I got out of the IRA as his death annoyed me. If I had not carried out these orders I would have been shot myself."

    In his statement and deposition DS Fitzpatrick recorded that once the appellant had signed the confession statement he asked him whether he had been ill-treated in any way and the appellant had replied that he had been roughed up a bit by the Army but he suffered no injuries.

    [7] The appellant was charged with murder contrary to common law at 22.00 hours on 16 October 1972 by DS Fitzpatrick and DC Hill. In reply to the charge he is reported to have said "I was ordered to do it." "If I had not done it I would have been shot myself." and "It was him or me." and that "Mr McManus is innocent as the IRA forced him to keep the gun." On 17 October 1972 DS Fitzpatrick and DC Hill showed Mr Holden the .303 rifle and loaded magazine. Mr Holden replied "My solicitor told me to say nothing." The charge of murder was substituted on 21 December 1972 by a charge of capital murder and the charges of possession of a firearm and ammunition with intent and carrying a firearm in a public place.

    [8] The appellant was tried by a jury before Lowry LCJ between 16 April and 19 April 1973. During a voir dire in the absence of the jury the defence applied to have the appellant's admissions and confession statement excluded from evidence on the basis that it had been obtained by oppression resulting from the appellant's treatment while in the custody of the Army. The prosecution called evidence relating to how the confession was obtained. Sergeant Rowntree stated that:-

    (i) He saw the appellant in a cubicle and took with him a screening pro forma and the file on the appellant;

    (ii) The file contained a source report indicating that the appellant was responsible for shooting a soldier on 17 September 1972 and that he was top snipe in his area;

    (iii) He asked the appellant what he was doing on Sunday 17 September and found that the appellant was surprisingly quick in his answers and remembered exactly what he was doing. The appellant stated he was playing cards with friends and was able to provide names and addresses;

    (iv) Intelligence showed that a large number of shootings had taken place on a Sunday. He asked Mr Holden what he was doing on other Sundays and was told that Sunday was Mr Holden's day off;

    (v) Mr Holden had an instantaneous memory of what he had been doing on particular Sundays;

    (vi) He told the appellant that he had a file on him and that it contained information that the appellant was responsible for the shooting of Private Bell. Mr Holden denied this;

    (vii) He read extracts of the file to the appellant and showed him two extracts from the file. He stated that the appellant then realised that they knew more about him than he expected;

    (viii) The appellant then admitted to being a member of the IRA and named other members. Sergeant Rowntree then left the cubicle to check the names in the intelligence office and was away for about 30 minutes;

    (ix) He read the appellant extracts from the files of others to show him the types of people the appellant was associating with;

    (x) He told the appellant about another shooting and the appellant denied he was responsible;

    (xi) The appellant admitted that he had done two snipes but stated he had not shot;

    (xii) He asked the appellant again if he was responsible for the shooting of Private Bell and the appellant denied it;

    (xiii) The appellant was becoming more apprehensive and gave the names of "Fianna boys" who had been lookouts;

    (xiv) Sergeant Rowntree left the cubicle again;

    (xv) When he returned the appellant stated "I shot a para" and mentioned Private Bell's name. The appellant stated that for a "long time now it had been praying on his mind and conscience and that he wanted to get it off his chest";

    (xvi) He left the appellant for 5-10 minutes and went to see Captain Milton who was writing weekly reports in his caravan. While Captain Milton finished reports Sergeant Rowntree tasked the arrest team to take the appellant to Castlereagh;

    (xvii) He went with Captain Milton to the cubicle and Captain Milton interviewed the appellant in his presence;

    (xviii) The appellant was then handed over to the RMP;

    (xix) The appellant's brother, Patrick, had been held in the cubicle next to the appellant and it was impossible to overhear noise from the next cubicle.

    [9] During cross-examination Sergeant Rowntree stated that:

    (i) He had not cautioned the appellant, his job was to question people to gain intelligence to be used against subversives and not to interrogate them. The information he obtained could not be used in court;

    (ii) He had not known Private Bell, who was in the 1st Parachute Regiment, while he (Sergeant Rowntree) was in the 2nd Parachute Regiment;

    (iii) He could not remember whether Private Bell had been the first soldier from the Parachute Regiment to die in Northern Ireland and felt no particular anger or resentment at the death of Private Bell;

    (iv) The appellant had been arrested on 3 October 1972 and questioned, but he did not know if a source report implicating the appellant in the shooting was available then or if the appellant had been questioned about it, he may not have been. The appellant had been released at 20.15 on 3 October 1972;

    (v) He had scruples about using threats against suspects in the IRA and would not use violence;

    (vi) He had not put a lighter close to the appellant's trousers, nor hit Mr Holden's brother, Patrick, in front of him;

    (vii) He had not sent for a bucket of water and a towel;

    (viii) He had not put a towel on Mr Holden's face nor poured water onto it and had never seen a bucket of water and towel so used;

    (ix) He did not produce a hood at any time nor take Mr Holden out of the Army post;

    (x) He did not tell the appellant that he was being taken out to be shot;

    (xi) He did not accuse the appellant of shooting Private Bell nor say this would never stand up in court;

    (xii) He "thought it was unlikely that the appellant would tell the police";

    (xiii) He had made rough notes of his interview which he later burnt and he made no report based on those notes.

    [10] Captain Milton stated that his role was that of Regiment Intelligence Officer and also of complaints liaison. He stated that he briefed his section as to procedure, behaviour and the treatment of people to be questioned. The latter should not be humiliated or attacked in any way. In cross-examination he stated that his section serviced the rest of the battalion with intelligence. Capitan Milton gave evidence stating that the appellant had given him an account of shooting a soldier whom the appellant stated he believed was Private Bell. Captain Milton stated that the appellant's account included the information that:-

    (i) He was at the flats at Westrock Road;

    (ii) No scope was used on the gun;

    (iii) That Private Bell had been the last soldier in the line and was turning around.

    In cross-examination Captain Milton stated that he knew of the appellant prior to his arrest of 16 October and had seen him, but not interviewed him, on 3 October. He had instructed that the appellant should be picked up, but did not know who gave the order to arrest him on 16 October 1972. He also stated that he had not known of the appellant's arrest until Sergeant Rowntree told him of the admission, and that Captain Milton should have been informed when Mr Holden arrived at the post. Captain Milton also stated that he had made notes of his interview with the appellant and sent a copy of these to Castlereagh. When re-examined Captain Milton stated that the source report implicating the appellant in the shooting of Private Bell was received on 1 October 1972, 48 hours before the appellant was brought in on 3 October 1972. There was nothing on the pro forma from 3 October 1972 to indicate that they were aware of the source report on 3 October 1972.

    [11] The appellant gave evidence in which he asserted:

    (i) He had been arrested with his brother Patrick and taken to Blackmountain School;

    (ii) He was placed in a room facing the wall and his brother called to him;

    (iii) A person who later identified himself as an SAS soldier was present and something was alleged relating to a lighter;

    (iv) Sergeant Rowntree and the SAS soldier subjected the appellant to water treatment. The appellant said they nearly drowned him;

    (v) It was put to the appellant that he had shot the para but he denied it;

    (vi) The appellant was hooded and taken out in a car to a farmhouse. When the hood was taken off he saw Sergeant Rowntree and the SAS soldier. They spoke about assassinations in Glencairn, the SAS man said they had done about eight of them and there was a discussion about whether to do it with a stick or a gun;

    (vii) While this was going on Sergeant Rowntree questioned the appellant about guns and ammunition. There was discussion about whether to take the appellant back or to take him out of the car. Someone tried to pull him out of the car. The appellant then told him about a house and the SAS man said to take him back and show him houses on a map;

    (viii) The appellant was taken back to Blackmountain School and pointed out a house on a map;

    (ix) Six soldiers were then brought in to ask questions and the appellant said "Yes, I shot Bell". Then he repeated this to Captain Milton;

    (x) Sergeant Rowntree told the appellant that he would take the appellant to Castlereagh and that if the appellant did not tell them he had an arrangement to come and get the appellant;

    (xi) The appellant stated that he had confessed because he believed he would be shot otherwise.

    [12] In his ruling on the question of admissibility Lowry LCJ considered whether there was any promise or favour or any menace or undue terror made to induce the accused to confess. If so was the accused induced by any such promise or menace to make the confession sought to be given in evidence. The learned trial judge noted that the appellant did not make the allegations which he now made at trial to doctors or the police. He concluded that he accepted the evidence of the prosecution and disbelieved the evidence of the accused. He accordingly admitted the statement in evidence on the basis that it was free and voluntary.

    [13] Prior to the voir dire Private Lockhart had given evidence in relation to the arrest of the appellant. The notes of his evidence indicate that it was brief, merely confirming that he had arrested the appellant and his brother from their home and taken them to Blackmountain School. There was no cross-examination. The evidence in relation to the interviews was largely repeated before the jury. The appellant stated that he had been playing cards with friends and three witnesses gave evidence at trial to confirm this. In cross-examination the appellant denied that he had stated how many rounds were in the gun or that he mentioned Mr McManus. He admitted that he had been in the IRA in January but that he did not know if the man he had mentioned was his OC. He stated that he had got out of the IRA in January because he did not consider what it was doing was right and his job was catching up with him. The jury found him guilty after deliberating for 1 hour 27 minutes.

    The CCRC investigation

    [14] The appellant raised his case with the CCRC on 26 September 2002. As a result of that investigation the CCRC gained access to a number of confidential Ministry of Defence documents. These included a "Blue Card" which was issued by the Director of Operations to soldiers engaged in making arrests under the Civil Authorities (Special Powers) Act (Northern Ireland) 1922. That instruction provided that adults arrested under the Special Powers Act were to be handed over as soon as possible to the RUC at the nearest police station or police holding centre. The relevant version of the Blue Card was issued in April 1972 approximately six months prior to the appellant's arrest.

    [15] On 5 June 1972 the Ministry of Defence wrote to the Chief of the Staff in Northern Ireland in relation to the concern of Ministers including the Attorney General about the procedures for handling persons arrested by the Army and in particular a concern about the risk of unlawful arrest or treatment. The correspondence indicates that the use of Regulation 7 of the Special Powers Act to carry out systematic military interrogation to obtain intelligence as appears sometimes to have been the practice was certainly outside the law. It was emphasised that a prisoner should not be held for longer than was essential at any point and certainly should not be taken to command posts and questioned as this would amount to an unlawful arrest. Advice from the Treasury Solicitor had suggested that only questioning to establish identity was lawful.

    [16] In a memo dated 5 July 1972 prepared for the benefit of the Attorney General's Office it was stated that the practice of taking arrested persons to military command posts for preliminary question prior to handover to the RUC had now been discontinued and should not recur. Revised instructions on arrest procedures were drafted and issued on 27 July 1972 almost three months before the appellant was arrested. Those instructions provided in particular:-

    "9. Anyone arrested is to be handed over as soon as possible to an RMP arrest team, which will ensure that he knows why and under what powers he has been arrested. The team will carefully document the arrest and then hand the person over as soon as possible to the RUC to be charged or for further questioning.
    10. Someone whose identity is in doubt may however be questioned by the arresting unit at a command post before he is handed over to a RMP arrest team. Anyone found to have been arrested in error must be released immediately. The sole object of this preliminary questioning is to ensure that RUC stations are not swamped with unidentified people; there is to be no systematic questioning by soldiers for the purpose of gathering intelligence. Arrested persons are to be held in military custody for the minimum possible period, which will never exceed a total of four hours without the authority of the Brigade Commander."

    [17] In a letter from Army Headquarters to the Ministry of Defence dated 16 October 1972 it was stated that everything possible had been done to emphasise the importance of the arrest instructions to troops. All units coming to Northern Ireland received instructions and arrest procedures from the Northern Ireland Training Advisory Team. Presentations on the subject had been given to all Company Commanders and were to be repeated to all new battalions. These instructions ought, therefore, to have been known by Captain Milton and probably by Sergeant Rowntree.

    [18] The CCRC uncovered an earlier statement made by Private Lockhart who had carried out the arrest. In that statement Private Lockhart explained that he had informed the appellant that he was being arrested under Regulation 11 of the Civil Authorities (Special Powers) Act 1922-43 for being a suspected member of the IRA. That was disclosed in the statement prepared for the trial. What was not disclosed was that the first statement stated that he also informed the appellant that the Army at Blackmountain wished to see him.

    [19] None of this material was disclosed to the defence prior to or during the trial. None of it was known to the PPS or prosecuting counsel. Prosecuting counsel has indicated that if the material had been disclosed to him he would certainly have ordered its disclosure to the defence.


    [20] If the information which has now been disclosed had been available at the trial it would have enabled defence counsel to contend that the instructions in relation to the arrest, detention and questioning of prisoners by the army were known to Captain Milton and Sergeant Rowntree in light of the extent of the disclosure of those instructions recorded in the documents. There is, therefore, a real possibility that the learned trial Judge may have been persuaded that Captain Milton and Sergeant Rowntree were knowingly acting contrary to instructions which had been made explicitly plain to them when interviewing the appellant. Secondly, the defence may have persuaded the learned trial Judge that the questioning of the appellant was unlawful on the basis that the power of army personnel to lawfully question suspects was limited to establishing the identity of the suspect.

    [21] Thirdly, the disclosed second witness statement of Private Lockhart raised the real possibility that the purpose of the arrest was to enable the army to interview the appellant. As the disclosed documents demonstrate such a purpose was unlawful and that may, therefore, have led to the conclusion that the arrest was unlawful. In light of the detailed instructions issued to army personnel prior to this arrest it would have been arguable that the arrest was directed in spite of the fact that the person directing it must have known that it was unlawful to do so.

    [22] We consider that the non-disclosure was material. On the voir dire the first question posed to himself by the learned trial Judge was whether any promise or favour or any menace or undue terror was made to induce the accused to confess. In answering that question against the background of disputed circumstances at the trial he had to make a judgment about the credibility and reliability of Captain Milton and Sergeant Rowntree. If the disclosed documents had been available to the defence there is a real possibility that they would have enabled the defence to significantly undermine the credibility of those witnesses for the reasons set out above. If the defence had succeeded in undermining the credibility of the two army witnesses that would have affected the admissibility not just of the statements made to them but also the statement made to the police since on the appellant's account that statement was made because of fear induced while he was in the custody of the army. No allegation of ill treatment was ever suggested against the police. There is, therefore, a real possibility that if these documents had been disclosed the learned trial Judge would not have admitted into evidence the admissions.

    [23] If the statements had been admitted it would, of course, have been open to the appellant's counsel to explore these issues before the jury. For the reasons set out above we consider that there is a real possibility that this material might reasonably have affected the weight which the jury gave to those statements and thereby affected the decision of the trial jury to convict (see R v Pendleton [2001] UKHL 66).


    [24] The case against the appellant depended decisively on the alleged admissions made to the army and the police. In light of the material now disclosed we consider that there is a real possibility that the admissions would not have been admitted in evidence and that if they had been admitted they may not have been considered reliable by the jury. Accordingly we consider the conviction is unsafe and allow the appeal.

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