The Ministry of Defence (MoD) is once again being accused of unreasonable and overzealous application of Public Interest Immunity (PII).
The State may invoke PII when they believe the public disclosure of certain information would threaten national security. It is an important protection which should be applied judiciously. And yet, the Ministry of Defence is frequently accused of abusing PII redactions to conceal unflattering or damning information they prefer to keep under wraps.
Such is the case in the inquest into the death of Sam Marshall, a 31-year-old man from Lurgan whose 1990 murder involves suspected collusion between State forces and loyalist paramilitaries.
Sam Marshall, Colin Duffy and Tony McCaughey were leaving the Lurgan RUC station when loyalist paramilitaries opened fire on the trio. Mr McCaughey and Mr Duffy were able to escape, but Mr Marshall was killed within minutes. The circumstances of the attack have raised credible allegations of collusion, and all three men were the targets of covert intelligence operations in the weeks before the shooting. Additionally, the weapon that killed Sam Marshall was used in several other attacks in which collusion is either confirmed or strongly suspected.
This inquest, which opened in March 2023, has faced repeated delays at the hands of the PSNI and MoD. Proceedings were effectively halted in November when, in an administrative hearing, theMoD informed the court that an issue of utmost secrecy would almost certainly cause significant delays. Redacted briefs have since been provided to lawyers for the Marshall family and for Mr Duffy and Mr McCaughey, but the redactions are inconsistent, heavy-handed, and legally questionable.
For example, in coronial proceedings deceased suspects should be named; and living suspects should be named and offered Properly Interested Person (PIP) status (which affords privileges such as legal representation in the proceedings). However, in these materials the MoD has redacted some appearances of suspects’ names while leaving the same individuals’ names unredacted in other parts of the document. Furthermore, the MoD redacted swathes of information relating to the capabilities of loyalist paramilitary groups who were active in the relevant time period. Mr Dessie Hutton KC, barrister for Sam Marshall’s family, criticised the MoD’s inappropriate redactions: ‘If there is evidence of collusion between security forces and loyalist paramilitaries in the 1990s, that’s not raising a national security issue. It’s not national security; it’s a national scandal and should be treated as such.’
Mr Jude Bunting KC, on behalf of Colin Duffy, noted that the MoD’s overzealous reactions grant effective anonymity to individuals who have not made the proper applications which must meet a ‘very high and exceptional threshold.’ Mr Bunting also noted that ‘collusion is at the heart of the inquest,’ and that ‘[the MoD’s] papers are shot through with clear and compelling evidence of collusion.’ He listed several examples, including State officials providing intelligence to loyalists and UDR members who were also members of the UVF. There may also be additional material that the MoD has not handed over, particularly pertaining to the role of State agents and informants in the preparation for, perpetration of, and inadequate investigation into the attack. Still, the MoD seeks to exclude collusion from the scope of the inquest. In March it was alleged that the MoD used similar tactics to hide the role of State agents and informers in the case of Seamus Dillon, who was killed in 1997 by the same weapon that killed Sam Marshall.
The MoD declined to present any arguments, instead preferring to provide their information in closed hearings which will exclude the public, as well as lawyers for the Marshall family and Messrs Duffy and McCaughey. The closed hearing is provisionally scheduled for Wednesday, April 17th, after which the coroner hopes to determine how the inquest might move forward.
