I

Neutral Citation No: ; Ref: BUR10717

Judgment: approved by the Court for handing down I

(subject to editorial corrections)" ! Delivered: 24/09/2018
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115714/2015

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

CHANCERY DIVISION

Between:
JOHN CHRISTOPHER WALSH
Plaintiff
and

MINISTER OF JUSTICE, DAVID FORD, MLA

DR TONY McGLEENAN, QC
Ms KAREN QUINLIVAN, QC
MR SEAN DEVINE, LLB
MR KEVIN R WINTERS, SOLICITOR
Defendants

BURGESS J
Introduction

[1] By Writ of Summons undated (but date stamped as issued by the Central
Office on 10 December 2015) the plaintiff, a personal litigant, sought, inter alia,
aggravated damages against each of the defendants and a declaration nullifying a
judgment dated 18 June 2012 made by Weatherup J in judicial proceedings instituted
by the plaintiff. On the same date a further document was served headed
"Statement of Case". This clearly represented the basis of the claim set out in some
152 paragraphs the allegations made against each of the defendants and the context
and background giving rise to those allegations.

[2) This latter document was later supplemented by an amended document,

again of some considerable length, dated 4 February 2016. Defences were filed and
delivered as were Notices for Further and Better Particulars by the defendants.

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 [3] Each of the defendants then issued_ summonses seeking orders the
Master striking out the proceedings in all its respects on the grounds of that no
feasible cause of action was disclosed, or that the proceedings were scandalous,
frivolous or vexatious and an abuse of the process of the court. In the case of the
third, fourth and fifth defendants an additional ground was included in the
application, namely that the proceedings were unintelligible.

[4] During the hearing before the Master the plaintiff sought leave to further
amend the Writ of Summons and the Statement of Case. No formal order was made
during the course of the hearing but the arguments before the Master incorporated
the basis of the claims contained in the proposed amendment. Therefore, all issues
which the plaintiff sought to pursue were considered and decided upon by the
Master. By orders of 10 April 2017 the Master in a detailed judgment first granted
the requested amendment to the Writ of Summons and Statement of Case, but then
ordered in the case of each of the defendants that the Writ of Summons and the
pleadings be struck out as:

(a) Disclosing no reasonable cause of action.

(b) Frivolous or vexatious.

(c) An abuse of the process of the Court pursuant to Order 18 Rule 19(1) of
the Rules of the Supreme Court (NI) 1981 and the inherent jurisdiction of the
High Court.

[5] For the sake of completeness Rule 19(1) provides:

"Where the plaintiff is required by these Rules to serve a

Statement of Claim on a defendant when he. fails to serve
it on him, the defendant may, after the expiration of the
period fixed by or under these Rules for service of that
Statement of Claim, apply to the court for an order to
dismiss the actions, and the court may be order dismiss
the action or make such order on such terms as it thinks
just."

[6] The court notes in this context that the court in such an application may:

(a) On its own motion invoke the inherent power of the court - Strong v Translink
[1999] NIJB 215.

(b) Personal litigants should generally be given the benefit of any lack of
clarity and their pleadings should be interpreted with appropriate latitude.

(c) A document not strictly in the form of a Statement of Claim can, with any
additional document, be treated as the Statement of Claim -Gregg Foster, a

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 Man and One of the People v McPenke and others [2015] NIMaster 14 (Master
Bell).

(7) The plaintiff appeals the decisions of the Master to strike out the actions. I
will return to the grounds of appeal after setting out the background.

The Background

[8] The background giving rise to these proceedings has been rehearsed in a
number of judgments in judicial review proceedings instituted by the plaintiff, and
by the Court of Appeal in those proceedings. It is also set out in a judgment of the
Master. In the present proceedings the Plaintiff's claims relate to the conduct of
those proceedings and alleged failings on the part of his own legal representatives,
the actions of the Department and their legal representative. I therefore intend to set
out what I have determined as the facts and issues which are salient to the issues in
these proceedings, but can confirm that the court has read all documents, judgments
and submissions.

[9) The plaintiff was convicted at Belfast Crown Court on 7 December 1992 on a
charge of possessing a coffee jar bomb with intent, contrary to Section 3 of the
Explosives Substances Act 1883. He was sentenced to 14 years' imprisonment of
which he served 7 years before his release. On 7 January 1994 the Court of Appeal
dismissed the plaintiff's appeal. On 27 March 2000 the Criminal Cases Review
Commission referred the case back to the Court of Appeal. On 7 January 2002 the
Court of Appeal dismissed the appeal. In January 2007 the plaintiff was granted
leave to re-open the appeal and on 10 March 2010 the Court of Appeal upheld the
appeal and quashed the conviction.

[10] In quashing the conviction the Court of Appeal set out to evaluate in detail
the evidence, including new evidence which had given rise to the leave to appeal. I
can categorise the new evidence under the following headings, namely:

(i) A statement from a Private Boyce contradicting in two respects his evidence
at the trial.

(ii) The significance of the absence of fingerprints on the coffee jar and sellotape
around the coffee jar.

(iii) Evidence relating to the alleged presence of RDX explosive on the plaintiff's
hand.

(iv) The alleged non-disclosure by the police/prosecution of the presence of "a

top IRA man" in the area at the time of the arrest of the plaintiff.

(v) An inference drawn by the earlier Appeal Court as to false evidence given by
a Mr Bradley.

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The above were supplemented by the conclusion of the Court of Appeal in 2007 that
the trial judge should not have drawn an adverse inference based on an alleged
failure by the plaintiff to mention in police interviews his later evidence as to a
person or man preceding him into the relevant alleyway.

[11] The test the Court of Appeal applied was set out at paragraphs [33]-[37] of its
judgement in the following terms:

"[33] In this case, of course, fresh evidence has been

introduced. The approach which the court should apply
in those circumstances is set out in the opinion of
Lord Bingham in R v Pendleton [2002] 1 CAR 441.

"The Court of Appeal can make its assessment of

the fresh evidence it has heard, but save in a clear
case it is at a disadvantage in seeking to relate the
evidence to the rest of the evidence which the
jury heard. For these reasons, it will usually be
wise for the Court of Appeal, in a case of any
difficulty, to test their own provisional view by
asking whether the evidence, if given at the trial,
might reasonably have affected the decision of
the trial jury to convict. If it might, the conviction
must be thought to be unsafe."

Of course we are well placed to identify the

considerations which led to the finding of guilt because
we have the reasoned, written judgment of the learned
trial judge and therefore not subject to the disadvantage
identified in this passage where the decision is the
unreasoned verdict of the jury.

[34] Applying these principles it seems to us that the

fresh evidence relating to Private Boyce and the
admission by the Crown that he could not have entered
the Suffolk Road as stated in his evidence relates to a
deficiency in the evidence of Private Boyce which was in
any event identified by the learned trial judge. He
specifically found that since there was nothing unusual
occurring there was nothing to cause any of the soldiers
to remember the details of what happened until the
events began to unfold. The recollection seven years later
that the appellant was static rather than moving when he
first saw him is of no more than modest significance.

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 [35] There is no doubt that the evidence of
Inspector Glass prevented any submission contending
that the absence of fingerprints on the coffee jar was a
point in favour of the appellant. Some of his evidence
appears to have misled the court although there is no
suggestion that this was deliberate. The fresh evidence
indicated a strong likelihood that if the coffee jar had
been handled by the appellant as alleged a fingerprint
would have been detectable immediately thereafter. It
was also clear, however, that the forensic bagging
techniques used at that time raised the possibility that
any such fingerprint would have been lost in transfer. If
this evidence had been before the learned trial judge it
would have been for him to evaluate its significance on
the issue of whether the forensic evidence was neutral.

[36] The non-disclosure point is more doubtful. The

thesis on which the top IRA man was arrested was that
he had transported the bomb carrier to the scene. He was
extensively questioned about this and there was no
evidence to connect him to the incident. There was no
evidence of any other person in the vicinity of the coffee
jar at any material time and the question remained as to
how it got there. The reference to the top IRA man could
at best have provided a partial theory. We have already
commented on the previous court's approach to Bradley's
evidence.

[37] As a result of the second hearing before the Court

of Appeal the adverse inference which formed the main
criticism of the appellant's evidence has fallen away. The
fresh evidence in relation to fingerprints might
reasonably have affected the learned trial judge's view as
to whether the forensic evidence was neutral. The second
statement from Private Boyce gives some material which
might have affected the evaluation of his reliability. For
those reasons we are left with a significant sense of
unease about the safety of this verdict. We bear in mind
that the appellant is a person of previous good character.
It is on that basis that we allow this appeal."

[12] There are two points that can be made in relation to the above decision,
namely:

(a) The Court of Appeal had the benefit of the transcript of the evidence given at
the trial, the reasoned decision of the trial judge, the new evidence that had

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 been introduced, including hearing the witnesses relevant to that new
evidence, and the representations then made on behalf of the Crown and of
the plaintiff; and

(b) The Court of Appeal were obliged to approach their view of that evidence
within the context of the test that applied, which was not as to whether the
plaintiff was innocent of the charge which he faced, but rather that, having
considered the evidence, it had a significant sense of unease about the
correctness of the verdict, based on that reasoned analysis of the evidence.
Therefore, the court made no "declaration" as to the innocence of the plaintiff.

[13] Following the Court of Appeal decision the plaintiff made an application for
compensation under Section 133 of the Criminal Justice Act 1998 ("the 1998 Act")
which represented the adoption of Article 14(6) of the International Covenant on
Civil and Political Rights and provides as follows:

"(1) Subject to subsection (2) below, when a person has

been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has
been pardoned on the ground that a new or newly
discovered fact shows beyond reasonable doubt that
there has been a miscarriage of justice, the Secretary of
State shall pay compensation for the miscarriage of justice
to the person who has suffered punishment as a result of
such conviction or, if he is dead, to his personal
representatives, unless the non-disclosure of the
unknown fact was wholly or partly attributable to the
person convicted."

[14] On 23 June 2010 the Secretary of State wrote a "minded to refuse" letter
stating that it was not believed that the “reversal” of the conviction was based on a
new, or newly discovered fact. Furthermore, it was believed that, even if there were
a new or newly discovered fact, Mr Walsh had 'so far failed to establish that such a
fact had shown beyond reasonable doubt that there had been a miscarriage of justice
- in the sense that he is demonstratively innocent'.

[15] The grounds for the application for compensation were set out in a detailed
submission dated 19 August 2010 ("the Submission"), settled by Edward Fitzgerald
QC, the senior counsel then acting on behalf of the plaintiff and Mr Sean Devine, the
fourth defendant in this action. At paragraph 2 of the Submission, paragraph [37] of
the judgment of the Court of Appeal is set out and at paragraph 3 it was argued that
these factors, looked at in the context of the case as a whole, plainly meant there had
been a "miscarriage of justice" - and that the plaintiff should never have been
convicted in the first place. At paragraph 4 it continues:

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 "[4] The applicant further relies upon the emergence of
photographs at the conclusion of this Appeal which
clearly demonstrate that the device was where he said it
was in his police interview as being overwhelmingly
demonstrative of his innocence and the fact that he did
not have a fair trial from the outset.

[5] In all the circumstances the Secretary of State is

invited to the view that this case comfortably sails over
the threshold for an award pursuant to Section 133."

[16] The Submission then sets out under a number of paragraphs the obvious II

overlap between the grounds for bringing the appeal and the reasons why it was
then advanced there had been a miscarriage of justice". It reiterated all of the points
to which I have referred above, and at paragraph 11 refers to the fact that the
Secretary of State was in a "fairly novel position of having to consider further fresh
evidence which "is devastating" to the Crown case, yet was not advanced as a
ground of appeal" - clearly a reference to the photographs. The Secretary of State
was invited to closely examine the photographs in the light of some of the passages
from the transcript of evidence, which were then set out in the Submission. That
included what was proffered as an important matter, namely that the prosecution
case was that no photographs of the device were in existence as it sat on the wall.
Instead, at the end of the appeal it emerged that in fact the photographs were in
existence.

[17] The Submission then continued to consider the application of the statutory
provision and the test that should be applied by the Secretary of State. I will return
to this. The following representations were made:

"41. It is quite clear that the whole case against the

defendant hung by a thin thread. There were not many
strands to this thread and it is, with respect, difficult to
see, even without the "new facts" how the applicant was
convicted in the first place, however, what little case
there was has been damaged very badly.

43. . .. the court therefore took a "view on the

correctness of the verdict based on a reasoned analysis of
the evidence". It is respectfully submitted that these
passages point the Secretary of State in the right direction
in the sense that it is implicit in this that the Applicant
should never have been found guilty and the
development since only served to reinforce this.

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 44. For these reasons it is submitted that this is clearly
a case in which the Secretary of State should consider
compensating the applicant for the time which he should
never have spent in prison. It is respectfully submitted
that this is precisely the type of applicant that Parliament
must have had in mind when providing the Minister
with these powers.

45. The applicant is clearly innocent and, in any event,

should not have been convicted." (The emphasis is that
of the court)

[18] Stopping at this point this court can conclude, I believe with confidence, that
by the Submission the Secretary of State had before him all of the evidence in the
case which had been considered, evaluated and weighed by the Court of Appeal;
had the view of the Court of Appeal as to the impact of that evaluation; and the
submissions on behalf of the plaintiff on two grounds (a) that he was innocent but
(b) in any case that he should never have been convicted. I will return to the test as
now to be applied by the Secretary of State as reformulated by the Supreme Court in
R (On the Application of Ada.ms v Secretary of State for Justice and McDermott and
McC.artney's Application) [2011] UKSC 18 and [2011] NI 42 ("the 2011 Test"), but it
useful to refer to the first two categories of cases the 2011 Test states should be
considered in dealing with the concept of 'miscarriage of justice', namely:

"The first category is where the fresh evidence shows

clearly that the defendant is innocent of the crime of
which he was convicted.

The second category is where the fresh evidence is such

that had it been available at the time of the trial no
reasonable jury could properly have convicted the
defendant."

[19] I believe that the Submission firmly placed before the Secretary of State that
the plaintiff fell to be considered in category 1, but in any event would fall within
category 2.

[20] While the Submission is dated 10 August 2010 it would appear not to have
been forwarded by the instructing solicitors (the fifth named defendants) to the
Department of Justice until a letter of 29 September 2010, marked as received on
1 October 2010.

[21] The next step appears to be an application for judicial review presumably
based on the "minded to refuse" letter of the 23 June 2010. The court does not have
the application itself but does have the decision of Weatherup J dated 9 March 2011

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 based on that application ('the 2011 Judgment'). There were three aspects to the
application for j udicial review, namely:

(a) What is referred to as the decision of the Department of Justice in respect of

the plaintiff's application under Section 133 of the 1988 Act.

(b) The decision of the Chief Constable of the PSNI in the conduct of the
prosecution in the trial and the appeals.

(c] The decision of the Northern Ireland Human Rights Commission (NIHRC)for
assistance with the appeals against conviction and in the aftermath of the
appeals.

The court had in the interim period also joined the Public Prosecution Service (PPS)
as a Notice Party in order to cover all aspects of matters in relation to the prosecution
of the plaintiff and the appeals against his conviction. The applicant appeared in
person at that leave hearing. As we will see his solicitors (fifth named defendants)
came on to record again later in the sequence of events.

[22] The 2011 Judgement in relation to the application in relation to (a) above, the
Section 133 application, concluded that it should wait for what became the 2011 Test
which at that time was still outstanding. As the June 2010 letter from the Department
made clear it saw the obligation to lie on the plaintiff to prove that he was innocent
in order to establish that there had been a miscarriage of justice. The judicial review
proceedings in respect of the Section 133 application and that in respect of the
NIHRC were adjourned pending the decision of the Supreme Court. Leave was
refused against the Chief Constable and the PPS.

[23) By letter dated 16 June 2011 the Department wrote to the plaintiff advising
that they had looked again "in detail" at the application applying the 2011 Test.
They indicated that they had not yet reached a decision and asked for the views of
Mr Walsh. However the letter concluded with the expressed view of the
Department that it was minded to refuse the application for compensation. In
reaching that view they referred to the fingerprint evidence; and the contradictory
evidence of Private Boyce. Of course at this point in time they had all of the
evidence contained in the Submission, including that which had been addressed by
the Court of Appeal in its decision to quash the conviction, including the evaluation
of that evidence juxtaposed with the evaluation of the evidence given at the trial and
the reasons given by the trial judge. The Department's view was that substantive
elements of the evidence on which the plaintiff had been convicted still remained
intact and therefore the evidence accepted by the court had not so undermined the
case against the plaintiff at the trial that no conviction could possibly be based on the
remaining evidence. No reference was made to the additional evidence of the
photographs referred to in the Submission.

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[24] On 23 June 2011 the plaintiff took up the opportunity to respond to the above
letter and it is worth setting this out in detail in order to show all of the issues that
had been articulated to the Department, including those in the Submission. In the
letter the plaintiff states:

"However, I would agree with you that my case is not a

"miscarriage of justice" in the ordinary meaning of that
term. My understanding of what a miscarriage of justice
would be is along the lines in some case where, after a
conviction, some significantly fresh fact, that had simply
been overlooked or misinterpreted, had come to light that
would have altered the Trial verdict. In my case facts
were known, doctored, tailored, manufactured,
concealed, contrived, etc, in order to secure my
conviction: although they need consider the Prosecutor,
Gary McCrudden' s role in "coaching his Military
witnesses (the idea of any "coaching" having been
involved was first disclosed by one of Mr McCrudden' s
own witnesses). The first it was ever disclosed that the
same Military Witness had claimed to have seen me in
possession of the coffee jar bomb was 9 full months after I
had been charged with the offence. The same Military
witness retracted his Trial Testimony 6 years after my
Trial. Mr McCrudden falsely informed the Lord Chief
Justice, and me, that his witness could no longer be
traced. Mr McCrudden made this false claim after the
court had requested that that Witness come before it and
explain himself. At the close of my last Appeal I took one of
Mr McCrudden' s files which contained photographs which
he had not wanted the court to be aware of, and, during
cross-examining me at the Trial set about to discredit
me for claiming to have been shown those Photographs
during interrogations. These are all now matters for the
record that you, and the Justice Minister, seemingly wish to
ignore in order to imply that I am the guilty one.

After all these months I do not think there is anything

that I could reasonably say in my defence that would
ever satisfy you, or the Justice Minister who have decided I
am guilty and not shifting from that position.

The above line has been proved right as the Minister of

Justice has been in collaboration with both the PSNI/PPS in
regard to the illicit doctoring of the evidence against me. Your
last email to me falsely alluded to “substantial”

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 evidence indicating my guilt - it is quite telling that you
have made no attempt to explain what evidence it was
that you were referring to."

[25] At this point, over and above the evidential aspects of the plaintiff's case and
their evaluation by the Court of Appeal, the Minister had the Submission including
the additional point that was raised regarding the photographs. He also had the
firm representation that the plaintiff was innocent, which by this time had been
defined as Category 1 under the 2011 Test, but that in any case he satisfied what was
now Category 2. To that body of evidence was now added the additional argument
put forward by the plaintiff that there had been collusion between all of the
authorities involved in the prosecution against him - including the involvement of
the Minister in a "conspiracy" to prove him guilty notwithstanding the decision of
the Court of Appeal.

[26] By letter of 5 July 2011 the Department wrote on behalf of the Minister
addressing the issues raised in the letter from the plaintiff. It set out what they said
were "at least" three elements of evidence that remained intact. They reiterated their
conclusion that:

"Whilst taking account of the new factual evidence that

led the Court of Appeal to quash (the) 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 on it. I have
therefore decided on behalf of the Department you are
not entitled to compensation."

[27] The NIHRC made its submissions in relation to the 2011 review giving rise to
the decision of 5 July 2011. It submitted that there were additional items of new
evidence which it was suggested the Department had not taken into account, namely
the non-disclosure of the presence of the top IRA man, the evidence in relation to
explosive residue transfer and fibre residue transfer. It also commented on the 3
substantive matters relied on by the Department as remaining intact, namely the
allegation of the presence of RDX detected on the applicant's left hand which the
trial judge had determined had to be left out of account; the Department's reliance
on a rejected explanation for the applicant's present at the scene which was not
probative of his possession of explosives, and that forensic evidence relating to the
absence of explosives on fibres and absence of fingerprints would have undermined
the forensic evidence put forward by the Crown.

[28] A further review was carried out by the Department and on 10 May 2012 it
confirmed its view that the evidence had not been so undermined that no conviction
could possibly be based on it.

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(29) Therefore, in addition to all of the matters before the Department to which I
have referred above can now be added the arguments put forward by the NIHRC
which not only covered all of the issues raised both by and on behalf of the plaintiff
but also the arguments put forward disputing the grounds put forward by the
Department to justify their decisions.

(30) The matter was brought back before the Divisional Court (Weatherup J) who
handed down its judgement on the 18 June 2012 ('the 2012 Judgement'). The
competing arguments concerned whether the Department considered the case in
accordance with the approach laid down by the Supreme Court, and whether it had
taken into account matters that it should not have taken into account or failed to take
into account, matters it should have taken into account. The arguments were made
on behalf of the plaintiff that the Department had taken an overly restrictive
approach when considering the judgment of the Court of Appeal in quashing the
conviction, and further the elements of the evidence that were argued by the
Department to have remained intact could not be sufficient to support a conviction.

[31] In the 2012 Judgment Weatherup J set out in detail the elements of the
evidence relevant to the exercise by the Department of the power given to it under
Article 133. That included the submissions of the NIHRC - see paragraphs [22]-[23]
of the Judgment. Under the heading "The 2012 Review by the Department",
between paragraphs [28] and [45] he addressed each element and in particular the
interaction between those elements. His conclusion can be stated in terms, namely
that there had been a failure by the Department to assess a number of aspects of
forensic evidence - the fingerprints and the "presence" of RDX on the plaintiff's left
hand - and a failure to take into account other forensic evidence available at the
second criminal appeal in relation to residue and fibre transfers. This forensic
evidence had then to be weighed in conjunction with all other factors to be taken
into account by the Department. The court determined that the Department's
review was incomplete and the matter was referred back again to the Department to
reconsider its decision in the light of the 2012 Judgment. It is important to note that
the only decision under the 2012 Decision was to refer the matter back to the
Department.

[32] Apart from this careful analysis of all of the evidential factors to be
considered, the court also made further statements, important in my view in their
own right, but also in the context of the present proceedings:

(a) The determination was to be considered in the words of the

2012 Judgment at paragraph [45] to ascertain whether the case fell within
Category 2 or Category 3. Reading the voluminous papers, it appears to
this court that the plaintiff took considerable issue with his legal
representatives' failure in his eyes to argue before Weatherup J that this
case fell within Category 1. I find however that this submission has no
merit. First the court was considering a defective assessment by the
Department of the evidence on which to determine which category it

12
 would fall into. The court recognised there was further material but it was
at the "first checkpoint" - namely had the evidence been properly
assessed? Once the assessment was properly carried out in accordance
with court's criteria, a further determination was required by the
Department – was it satisfied that the evidence allowed the case to fall into
Category 1 or 2 - remembering if it concluded it was unable to satisfy the
Category 2 test, dearly there was no prospect of satisfying the test for
Category 1:

and

(b) Explicit and inherent in a considerable number of documents and

assertions relating to the motivation of parties - bias, duress and
economic pressures to name a few, contributed in the view of the
plaintiff to the Department being incapable of carrying out an objective
and reasoned determination. It is argued that this left the plaintiff in a
position where there was no legitimate form of authority for deciding
his entitlement to compensation. Weatherup J addressed this point full
on in two passages:

(i) The first set out that the process had been determined by
Parliament as that to afford a remedy to those whose
convictions were quashed. At paragraph [26] and [27] it is
stated that:

"[26] However, the task is to decide the issue

by taking into account what the Court of
Appeal quashing the conviction has stated but
without being governed by what has been
stated or not stated. The Court of Appeal in
hearing the appeal is performing a different
task and applying a different test to the task
being undertaken and the test being applied by
the Minister. The Court of Appeal is
determining the safety of the conviction. The
Minister is determining whether the applicant
could possibly have been convicted on the
evidence now revealed. Perhaps this is a test
best suited to a Judge accustomed to making
an assessment of evidence in criminal
proceedings, rather than a Minister, no doubt
advised by legally qualified officials, but
Parliament has decided in Section 133 of the
Act that this is a decision for a Minister.
(emphasis added)

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 [27] While the decisions of the Courts
provide the material on which the Minister will
make a decision, it is for the Minister to make
the assessment. The Minister must form his
own view in relation to the material. I refer to
Lord Kerr at paragraph 169 of the report in
Adams-

'In my opinion, the decision as to

whether the statutory conditions
have been fulfilled is one for the
Secretary of State to make and he
may not relinquish that decision
to the Court of Appeal. True, of
course, it is that the material on
which the decision is taken will
derive in most cases from the
judgment of the Court of Appeal.
True it also is that it would not be
appropriate for the Secretary of
State to depart from the
reasoning that underlies that
judgment unless for good reason
it is shown to be erroneous but
the Secretary of State must make
his own decision based on all
relevant information touching on
the question whether there has
been a miscarriage of justice".

(ii) The second passage comes in paragraph {48] of the 2012

judgment which states:-

"[48] The Supreme Court decided that

MacDermott and McCartneys Application fell
within Category two and should be the subject
of compensation. There was some debate as to
whether this Court should decide the issue of
entitlement to compensation on this
application for judicial review. At first instance
I do not propose to make such a decision.
Entitlement to compensation for miscarriage of
justice is a decision for the Minister as stated in
the legislation. At appellate level there may be
a different approach but at first instance this is
a matter for the Minister. I refer the decision

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[37] Mr Walsh pursued a number of courses after the refusal for the issue of the Writ of
Coram Nobis. This included an application to the European Court of Human Rights which
would appear to have come to nought. It also included complaints to the professional bodies of
the second, third, fourth and fifth defendants to these proceedings. Those complaints were
considered and found to have had no basis.

[38] Jumping ahead for a moment, in 2014 the plaintiff sought the Court of Appeal
to extend time to appeal the two judgments of Weatherup J. This was refused. At
paragraph [9] the Lord Chief Justice in an ex tempore judgment stated:

"But as I have said there is not material that we can

see in terms of the submissions which were made to
the various courts or the material which has been
advanced by Mr Walsh which indicates that counsel
on his behalf has done anything other than present
perfectly, proper, professional approach to what was
a difficult case for counsel and undoubtedly a difficult
personal case for Mr Walsh and we recognise that."

[39] This court takes into account, in its own determination, that the appellate
court has addressed the conduct of the legal representatives on which Mr Walsh
bases the present claims and found no criticism let alone a breach of duty, bias or
duress.

[40] On 9 May 2013 the Department determined that "a jury might or might not
have convicted" the plaintiff on "that evidence" – that is "the eyewitness statements
and (your) unconvincing explanation for your presence at the scene at the time". No
other evidence is stated as having been relied on for this conclusion, in particular
there was no reference to any allegation of the presence of RDX, the evidence of
fingerprints (or their absence) or the role of fibre transfer.

[41] At that point it was open to Mr Walsh to take a similar course as he had done
on two previous occasions, namely to apply for judicial review of that decision, or,
arguably, seeking to continue with the judicial preview that had resulted in the
Court returning the matter to the Department.

[42] However no proceedings were taken by him, a matter which has caused this
court considerable surprise. The court had indicated in the 2012 Judgment that it
had a supervisory role over the Department's approach to its determination,
including reference to the MacDermott and McCartneys Application where the
Supreme Court substituted its view for that of the relevant Department. If the
plaintiff had taken the step open to him in the context of the process determined by
Parliament, it was open to him to argue that the Department was wrong in its
conclusion: and that on the evidence it had before it, including the evidence
articulated in the Submission, the NIHRC' s response, and that adduced and argued

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 back to the Minister to reconsider in the light of
this judgment." (emphasis added)

In this paragraph the court identified that there "may be a

different approach at appellate level", having referred to
MacDennott and McCartneys Application where the Supreme
Court did decide the question of which category and the right to
compensation.
[33] Therefore at this stage the ball was firmly back with the Department to
reassess the evidence and make a decision based on that reassessment and the 2011
Test. I am satisfied that by that stage every conceivable evidential consideration had
been ventilated and, as importantly, a legal process was still available should the
Department again refuse to award compensation - a process which had the potential
to allow that decision to be made by a Court, as opposed to the Department.

(34] Undoubtedly the whole process of the application for compensation had been
delayed as we know by the shortcomings of the Department identified in the two
Judgments. I have no doubt that this would have unnecessarily added to the already
traumatic impact this whole ordeal will have caused Mr Walsh. However that could
have been addressed in the event that compensation was determined as due to him.

[35] Before a further decision was made by the Department, the plaintiff made a
personal application for a Writ of Coram Nobis for review of the 2012 Judgment.
This was based on the statement that the court in that Judgment had referred to "the
presence of RDX explosive" on Mr Walsh's left hand, whereas the evidence of a Dr
Lloyd referred to a mimic substance used in the manufacture of foam plastics
producing similar readings. Having considered such a procedure to be obsolete,
Weatherup J nevertheless set out his reasons for concluding he would not have
changed his judgment. The fact is that he had clearly stated in his 2012 Judgment
that Dr Lloyd's evidence had to be considered by the Department, drawing explicitly
this evidence to the Department's attention and the need to consider it in
conjunction with other forensic evidence.

[36] The same proceedings also addressed:

(i) Complaints against the other defendants in this action. It is suffice to

record in terms that such complaints were over time addressed by the
respective professional bodies.

(ii) The absence of an independent and impartial tribunal, repeating the

issues raised in the 2012 Judgment - see above. It is worth noting that
whilst referring to the statutory provision set down by Parliament the
learned judge at paragraph [14] refers to "the supervisory jurisdiction
of the court" of the Department's decisions.

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at two previous hearings, the court could consider not just if it met the Category
2 test, but also Category if Mr Walsh wished to advance that argument in such
proceedings.
[43] Having failed to take the step open to him, it is clear to this court that Mr
Walsh seeks to litigate issues in a different forum, one outwith the statutory route
laid down by Parliament. In respect of the Department, he seeks to use this route of
a writ of summons for damages in substitution for the statutory process with which
he failed to engage, but of which he was clearly fully aware. As regards his legal
representatives, damages could only be awarded on the basis of a failure on their
part through a breach of duty or under the other headings to obtain compensation
for him under the Section 133 route. But despite the fact that this route was still
open if the plaintiff had chosen to afford his representatives the opportunity to argue
his case after the latest decision by the Department, he chose not to pursue it, and
thus deprived them of that opportunity.

(44) I am satisfied that to that point everything possible had been put forward by
his legal representatives over a long period of time, resulting in directions from a
court on two occasions as to what evidence the Department had to look at and the
test to be applied. I am also perfectly satisfied that if Mr Walsh had pursued the
judicial review it was open to his legal representatives to comment further on all
the evidence that had been put forward, on the assessment by the Department,
and to put forward his argument into which Category he would have fallen. Even
if there had been any shortcoming in arguments on this latter point up to that
stage (and given the matters being considered by the court at the relevant time I do
not accept that there was) they could easily have been corrected. That is - as and
when the 2013 decision would have come to be considered, then at that stage it
may be that he would have felt aggrieved if the argument had not been put
forward that his case fell to be determined under Category 1. However, we never
reached that stage due to Mr Walsh failing to take the steps open to him which
might well have accorded him at least one of his motives in taking the
proceedings, as set out in his notice of appeal, namely to vindicate him in respect
of what was clearly a serious crime, but above all one for which he spent a
considerable period of his life in custody in respect of an offence for which,
eventually, it was determined by the courts that there had been a miscarriage of
justice.

(45) I therefore determine that without more the present proceedings represent
an abuse of process in seeking to substitute these proceedings for a failure on the
part of the plaintiff to pursue the statutory remedies open to him to satisfy any
claim that might be open to him to seek compensation for his wrongful conviction.

[46] Given that determination I can deal briefly with certain other of the arguments
put forward by Mr Walsh. First the legislation provides that the authority
charged with making decisions under Section 133 is the Department, not the
individual Minister. Therefore any claim against David F o r d in his capacity as
Minister is misconceived. This seems t o have b e e n a c c e p t e d by Mr Walsh w h e n

17
appearing before the Master. Secondly as regards Mr McGleenan Q.C., the position is
straightforward. As Counsel for the Department he owed no duty to Mr Walsh, and
in any case there is no evidence whatsoever, indeed to the contrary, that any
representation pointed to by Mr Walsh was not one which was relied on by the
Court at any stage. Thirdly, serious allegations of misconduct have been made
against his legal representatives, none of which has any foundation in fact. There is
no evidence that his representatives have not put forward his case robustly and
fearlessly. At times they have used their professional judgement as to how best to
argue that case, but as I have pointed out, even if in the past this fell short of Mr
Walsh's wishes, by his inactivity he has deprived them and himself of the
opportunity to consider how his case could have been presented after the 2013
Decision. It is a matter of regret to this Court, before whom Mr Walsh has always
acted with the greatest courtesy and restraint, that he should feel that his legal
representatives not only in his eyes failed him, but acted with motives such as
alleged.

[47] The Master's judgement carefully considered the grounds put forward by the
defendants in terms of the proceedings being frivolous and vexatious. I am happy to
adopt his reasoning for striking out the Writ and proceedings against each of the
defendants, but point to my primary conclusion that these proceedings are an abuse
of process, seeking to institute proceedings which were properly to be decided
under the relevant statutory provisions, which for some reason the plaintiff did not
seek to continue.

[48) I therefore dismiss this appeal, and will hear any argument on costs.

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