The last man to be handed the death penalty in Northern Ireland has won a High Court battle over disclosure of inquest documents.

A judge ruled that a scheme which required a binding undertaking of confidentiality before releasing files was unlawfully used in the case of Liam Holden.

Mr Holden, 66, was sentenced to hang for the killing of a British soldier in west Belfast in 1972.

The death penalty was commuted to life in prison before a 40-year fight to clear his name resulted in his murder conviction being quashed in 2012.

Mr Holden, who always maintained the military subjected him to water torture and death threats to extract a confession for the shooting of Private Frank Bell, then began a compensation claim for a miscarriage of justice.

He has also issued civil proceedings against the Ministry of Defence and the Chief Constable.

The widowed father-of-two’s legal representatives were seeking access to all material held on the Private Bell inquest as part of the action.

But before agreeing to disclose the files the Public Records Office of Northern Ireland (PRONI) wanted a binding undertaking that the documents would be kept in the strictest confidence.

Mr Holden’s lawyers mounted a bid to judicially review the decision, arguing that the undertaking requirement is unreasonable and unlawful.

They also claimed PRONI failed to take into account that Rule 38 of the 1963 Coroner Rules automatically entitled him, as a “properly interested person”, to view and obtain copies of the papers.

The information requested includes details on the trajectory of the shooting of the 18-year-old soldier while on foot patrol in Springfield Avenue.

Ballistic evidence and the post-mortem report are also being sought.

Although documentation was later disclosed to Mr Holden’s solicitor following an application under the Freedom of Information Act, the court heard three categories of redactions remained in the revised file.

The undertaking was said to be part of a pilot scheme by the Department of Arts, Culture and Leisure to have inquest records made available to those with a valid reason for viewing the documents.

Counsel for PRONI argued that the challenge was rendered academic by the introduction in 2016 of the Court Files Privileged Access Rules (Northern Ireland) giving Mr Holden all available information.

It was also contended that the pilot scheme and the undertaking was “a pro-active attempt to provide a solution to a matter of genuine public concern”.

But Lord Justice Treacy said Mr Holden was unable to access Private Bell’s inquest file based on legal advice which “erroneously” narrowed the scope of Rule 38.

“The pilot scheme and the impugned undertaking fettered the presumptive right of a properly interested person to full access to the inquest file (subject to the Coroner’s full consideration of matters relevant to disclosure) and it was therefore unlawful to apply that scheme to the applicant in this case,” the judge ruled.

“The lawfulness of that scheme and the impugned undertaking as it might have applied to other parties (i.e. parties who are not properly interested persons) is beyond the scope of these proceedings.”

Mr Holden’s murder conviction was quashed by the Court of Appeal following a referral by the Criminal Cases Review Commission.

The body set up to examine potential miscarriages of justice deemed the conviction unsafe after an investigative journalist supplied evidence to back claims that waterboarding torture techniques were used.

A confidential dossier was also found to contain relevant material about military rules in 1972 for arresting and questioning a suspect, and a statement of evidence from a soldier.

Appeal judges held that the non-disclosure impacted on the safety of Mr Holden’s conviction and could have supported an application to exclude confession evidence.

Belfast Telegraph

25th November 2020