When Judicial Review Becomes an Ineffective Use of Public Funds
A High Court judge questioned why legal aid had funded a challenge to a soldier’s actions during a two-second IRA ambush. The Court of Appeal went further: after examining the case for itself, it upheld the substance of his reasoning and concluded that litigation amounting merely to disagreement with a coroner was not an effective use of public funds — even where Article 2 was engaged.
If there is one case that exposes the fault lines in the Northern Ireland legal aid system, it would be the publicly funded legal harassment of Soldier B 31 years after an incident.
Before we begin, though, take a moment to close your eyes and think “one thousand, two thousand”.
That is how long the incident took.
Or, to put it another way: In less time than it takes to read this sentence, time would be up.
That is just one of the many facts not in dispute.
Let’s go back to Monday 3rd June 1991 to a car park in Coagh, County Tyrone. One person is standing in the car park reading a paper. He is, in fact, an undercover soldier (“Soldier L”) impersonating the intended target of an IRA murder squad.
He had driven the UDR man’s Maestro to a car park at Hanover Square, where he exited the vehicle and stood beside a toilet block, just as he had done the previous Friday. Nothing had happened that day.
The security forces, operating on covert intelligence, had mounted a joint military-police operation in anticipation of the attack. Intelligence is rarely complete. There was no knowing who would come or what day they would hit. On the Monday, army and police positioned themselves again. This time, unlike Monday, Soldier L got out of the car, making himself an easier target. He was not wearing body armour. His radio communications had failed.
An army “cover group”, including Soldiers A, B, C, and D, was concealed in the rear of a flat-bed lorry opposite the car park and equipped with G3 rifles. They awaited radio instructions from a spotter, Soldier H, who was positioned in an upstairs room overlooking the scene. A separate arrest group was stationed nearby, and police vehicles were deployed to block exit routes from the village.
A little after 7:30 am, a red Vauxhall Cavalier, driven by Mr Doris and containing the Provisional IRA Active Service Unit (ASU), approached Hanover Square. Soldier H observed three occupants and broadcast ” standby standby.”
The vehicle came to a stop at the entrance to the car park. A rear-seat passenger armed with an AK-type rifle opened the door and aimed towards Soldier L.
Soldier H immediately transmitted ” go, go, go.”
Soldier L threw himself over a wall at the rear of the car park, and the cover group dropped the concealed side of the flat bed lorry and opened fire on the Cavalier, which began moving across the square. The vehicle collided with a parked car and became engulfed in flames due to the ignition of ammunition inside.
Two AK-style rifles were later recovered from the scene. No member of the ASU discharged a weapon during the incident. Two rifles were recovered from the scene, which had been brought there by the occupants of the vehicle.
The driver, Anthony Patrick Doris, was shot dead by a soldier, and the other two members of the PIRA team were also killed.
An inquest was conducted over a number of days in 2022 and 2023, and Humphreys J, sitting in his capacity as a coroner, delivered his reserved findings running to 339 paragraphs on 11 April 2024.
Roisin Nugent, the daughter of Doris, sought to challenge some but not all of the findings of the coroner in relation to the death of her father, and applied to the Northern Ireland High Court for leave to apply for a judicial review. Mr Justice McAlinden delivered his findings on that application on 8 October 2025.
McAlinden J found that the challenge was “utterly divorced from the reality” faced by Soldier B; that attempting to analyse the shooting frame-by-frame and shot-by-shot was “ludicrous”; that the coroner’s reasoning was “clear, comprehensive and flawless”; and that there was “no basis” for quashing the findings.
The Times at the time reported that McAlinden J also expressed “surprise” that she had been granted legal aid to attempt to mount a merits challenge against the coroner’s detailed findings under the guise of a judicial review.
But the full 26-page judgment is more significant than the newspaper summaries suggest.
There were seven particularly important findings:
- The judicial review application was, in McAlinden J’s view, not genuinely identifying a reviewable error but rather attempting to reopen the merits of factual conclusions reached after an extensive Article 2 inquest.
- The attempt to analyse eight shots individually was fundamentally artificial because the entire engagement lasted less than two seconds.
- The lawfulness of Soldier B’s conduct had to be assessed according to the circumstances as he honestly and genuinely believed them to be at the time, rather than facts established retrospectively.
- The use of force was, in McAlinden J’s own assessment, entirely proportionate and absolutely necessary.
- The Yellow Card was complied with; the argument that the coroner had inadequately explained this was described as “utterly groundless”.
- Soldier B’s specialist training did not make the shooting presumptively less defensible. McAlinden reasoned that such training also equipped him to make exceptionally rapid and informed judgments about lethal force.
- Most strikingly, the judge expressly questioned why public legal-aid funding had been provided for the challenge at all.
There is therefore considerably more here than the word “ludicrous.”
What was actually being challenged?
The 2022–23 inquest conducted by Humphreys J produced 339 paragraphs of findings. Nugent did not challenge the whole inquest. Her application focused on the findings regarding Soldier B.
The relief sought was substantial. Among other things, she wanted the court to quash relevant findings and effectively substitute a finding that Soldier B’s lethal force:
- breached the Yellow Card;
- was unreasonable;
- was unjustified;
- was unlawful; and
- resulted from an Article 2-defective inquest.
One specific argument was that the coroner should have determined whether each individual shot fired by Soldier B was “unavoidably necessary”.
That last contention was central to McAlinden’s criticism.
The operational reality
This is perhaps the strongest part of the judgment.
The evidence established that the Cavalier was visible to Soldier B for only one to two seconds. Ballistics evidence was that a proficient marksman could fire eight aimed shots from the weapon concerned in less than a second.
Against that evidential background, the applicant nevertheless argued that the coroner should have addressed whether each one of Soldier B’s eight shots was individually absolutely necessary.
McAlinden’s response at [53] is unusually severe: “This preceding sentence really highlights the ludicrous nature of this challenge funded as it is by legal aid.”
He then reconstructs what Soldier B actually confronted: an armed PIRA team had arrived to commit murder; a gunman had begun exiting the vehicle; Soldier L had thrown himself over a wall; the soldiers received the radio signal indicating an immediate threat to life; and the entire engagement then unfolded in seconds.
McAlinden points directly to the artificiality of retrospective analysis. The applicant’s case amounted to the claim that Soldier B should have paused after every shot and reassessed whether another shot was necessary.
He describes those grounds as “utterly divorced from the reality” of the circumstances faced by the soldiers, where the entire firing sequence took less than two seconds.
His central analytical point is important: A court cannot convert seconds of real-world decision-making into a leisurely sequence of discrete decisions simply because, decades later, evidence can be examined frame by frame.
“It is ludicrous to suggest that this court should analyse the events … in that manner,” he says, and equally ludicrous to quash the coroner’s findings because the coroner had not undertaken such a slow-motion exercise.
That has significance well beyond this particular shooting.
Hindsight and the “unarmed” driver
The applicant repeatedly characterised Doris as an unarmed driver driving away.
McAlinden identifies an important epistemic problem with that description: we now know Doris was unarmed; at the time Soldier B did not.
The coroner had accepted Soldier B’s evidence that he did not know whether Doris was armed. Soldier B’s evidence had been subjected to extensive cross-examination, and his honesty was not challenged during it.
McAlinden is exceptionally critical of the attempt retrospectively to require Soldier B to have concluded that the driver was unarmed.
“That criticism is unfair, naive, and demonstrates a detachment from reality,” he says, which he attributes to a desire to rewrite events rather than discover the truth.
This distinction is fundamental:
Objective historical fact: Doris was unarmed.
Operational knowledge: Soldier B did not know Doris was unarmed.
Those are not legally interchangeable propositions.
The judgment repeatedly resists substituting the first for the second.
Proportionality and absolute necessity
The proportionality assessment was whether the force used was reasonable having regard to the circumstances as Soldier B honestly and genuinely believed them to be.
That still required an objective assessment of the reasonableness of Soldier B’s actions—it was not enough merely for Soldier B to assert that he believed the shooting necessary.
But McAlinden considered the coroner’s reasoning “clear, comprehensive and flawless.”
The coroner had considered the relevant evidence, excluded irrelevant considerations and undertaken what McAlinden called a common-sense analysis of proportionality.
McAlinden then goes further than merely saying the coroner was entitled to reach his conclusion.
He conducts his own assessment.
He asks what Soldier B realistically could have done when confronted with a vehicle containing three members of a PIRA active service unit intent on murder, including men armed with automatic rifles.
His conclusion is unequivocal: “the only realistic response” was to neutralise the immediate threat.
He finds that Soldier B acted in a restrained and proportionate manner, noting in particular that Soldier B stopped firing once the driver disappeared from view and did not resume firing after leaving the lorry.
McAlinden says that, were an independent proportionality assessment required, he would “unreservedly conclude” that Soldier B’s force was entirely proportionate.
This is not simply saying, “The coroner’s decision was within the range of reasonable decisions.”
It is also: On his own assessment, he reached the same conclusion.
European Convention on Human Rights Article 2
Article 2 of the European Convention on Human Rights protects the right to life. It requires the state not to take life unlawfully, but it also imposes duties to protect life and, where someone dies through potentially unlawful state action, to carry out an effective investigation.
In cases involving soldiers or police using lethal force, the key question is whether that force was “absolutely necessary” in the circumstances as they honestly and reasonably appeared at the time. The law does not judge the decision with perfect hindsight; it asks what the person using force reasonably believed about the threat in the moment.
For Northern Ireland legacy cases, Article 2 is therefore important both because it governs the lawfulness of lethal force and because it can require the state to investigate deaths properly.
Article 2 was used by the applicant both substantively and procedurally.
She argued that the inquest had failed adequately to investigate the circumstances of Doris’s death and that the resulting verdict was incapable of playing the necessary role in identifying possible criminal offences.
McAlinden rejects that proposition emphatically.
An important preliminary observation was that the inquest was not a superficial paper review.
Soldier B:
- gave oral evidence;
- waived his right against self-incrimination;
- answered potentially incriminating questions;
- underwent rigorous cross-examination by senior counsel; and
- had his credibility assessed directly by the coroner.
The coroner examined witness statements, ballistics, pathology, photographs, maps and MOD material. Moreover, the coroner did make findings adverse to the MOD where he considered the evidence warranted them—including referring matters concerning destroyed video evidence and operational planning to the PSNI.
That is significant because it undermines any suggestion that the coroner approached the military evidence deferentially or uncritically.
McAlinden’s final Article 2 conclusion is categorical: the coroner’s detailed investigation and findings complied “in every way” with the state’s Article 2 duties.
The Yellow Card
The relevant Yellow Card required:
- minimum necessary force;
- firearms only as a last resort;
- normally a warning before opening fire;
- but no warning where doing so increased the risk of death or grave injury;
- and firing only against somebody committing or about to commit an act likely to endanger life where there was no other way to prevent the danger.
McAlinden deals separately with each component.
Warning
He considers a warning operationally unrealistic.
The soldiers were prone in a concealed lorry; the target vehicle was moving; its windows were up; armed terrorists were inside; and waiting to see whether they surrendered could expose the soldiers to automatic fire.
He describes giving a warning in those circumstances as “utterly impracticable at best and counter-productive at worst.”
Waiting for the response before firing would, he says, have been “utterly foolhardy”, creating a high risk of innocent deaths.
Threat to life
The fact that Doris himself was driving rather than visibly carrying a rifle did not remove him from the lethal threat.
McAlinden’s reasoning is straightforward: Doris drove an armed terrorist unit to the intended victim so that the murder could be carried out. Driving the gunmen into position was itself an integral part of the attempted killing.
Consequently, “the driver is clearly constituting an immediate threat to life.”
The argument that Soldier B had to establish positively that Doris himself was armed therefore “does not hold water.”
The attack on the coroner’s reasoning
The contention that the coroner failed to explain Yellow Card compliance gets some of McAlinden’s strongest language.
He calls it “utterly groundless.”
And says, claiming that the coroner had failed to explain the conclusion was equivalent to arguing “that a black crow was white.”
His conclusion: “It really is a poor argument without substance.”
Highly trained soldiers — an important finding
This issue deserves particular attention because it cuts both ways.
The applicant argued that a highly trained specialist soldier should be held to a higher standard than an ordinary civilian.
McAlinden does not reject that proposition outright.
He accepts that training, skill and experience are relevant to determining whether lethal force was absolutely necessary. A specialist counter-terrorist soldier should possess far greater expertise in firearms, tactics, alternatives to lethal force and the Yellow Card than an ordinary civilian.
But he then reverses the implication the applicant sought to draw from it.
Superior training also means that the soldier is better equipped to recognise when lethal force actually is necessary.
McAlinden observes that Soldier B’s training meant he understood “the dangers of prevarication and the dangers of delayed decision making.”
High standards are properly demanded of him, but high expertise must equally be attributed to him.
That is a sophisticated finding. Specialist training is neither a licence to kill nor simply an additional liability. It is relevant evidence concerning the soldier’s capacity to make the correct decision under extreme time pressure.
McAlinden’s criticism of the litigation
Taken together, the language is extraordinary for a judicial-review judgment.
McAlinden describes different aspects of the applicant’s arguments as:
- “ludicrous”;
- “utterly divorced from the reality”;
- “unfair, naive”;
- demonstrating “a detachment from reality”;
- “utterly groundless”;
- “a poor argument without substance”;
- not surviving “even the most cursory logical analysis”;
- “grasping at straws”;
- “unsustainable”;
- and the judicial review itself as “unmeritorious.”
There is also a deeper criticism.
McAlinden concludes that the inadequate-reasons argument was actually “motivated by a desire to attempt to undermine the coroner’s substantive findings in any way possible”, because the applicant disagreed with what the coroner had found.
That leads directly to his conclusion about misuse of judicial review.
Judicial review being used as an appeal on the merits
Judicial review ordinarily supervises the lawfulness of decision-making. It is not simply an opportunity to rerun the evidence because a party dislikes the result.
McAlinden emphasised earlier that his court was exercising an “essentially supervisory function.” The coroner had actually heard Soldier B, watched him give evidence and undergo cross-examination, and assessed his credibility.
The application nevertheless attempted to have the High Court revisit those substantive factual assessments.
McAlinden ultimately calls it exactly what he thinks it is, “a merits challenge against the coroner’s detailed findings under the guise of a judicial review.”
That phrase is potentially much more consequential than “ludicrous.”
It identifies not merely a weak case but, in McAlinden’s analysis, the attempted use of one legal procedure to achieve something that procedure is not designed to do.
Legal aid
The legal-aid issue appears twice, and the combination matters.
First, immediately after describing the contention that each of eight shots required separate justification, McAlinden remarks on “the ludicrous nature of this challenge funded as it is by legal aid.”
Then comes the fact that the application did not merely lose. McAlinden found that it “fails to get off the ground” and had not established an arguable case with reasonable prospects of success. There was no basis for quashing the findings.
He then notes the irony that Soldier B—the only soldier whose actions were challenged—had exercised “by far the greatest degree of restraint” among the soldiers involved.
Then: “With the benefit of legal aid, she has attempted, without success, to mount a merits challenge against the coroner’s detailed findings under the guise of a judicial review.”
Finally, before making the appropriate assisted-person costs orders: “I cannot conclude this judgment without expressing my surprise that legal aid funding was made available to mount such a challenge”
What the judgment does — and does not — establish
The judgment establishes that a High Court judge considered this particular publicly funded challenge so devoid of merit that he expressly questioned why legal aid had been granted; considered it an attempted merits challenge masquerading as judicial review; and repeatedly criticised arguments which sought to reconstruct a sub-two-second armed engagement through retrospective, slow-motion analysis.
It does not establish that legacy judicial reviews generally are abusive, that legal aid for legacy litigation generally is improperly granted, or even that the legal-aid authority acted unlawfully in funding this case. McAlinden expressed surprise; he did not judicially review the Legal Services Agency’s funding decision.
That distinction will matter if this is eventually used as evidence rather than advocacy.
But wait, there’s more
One important subsequent development: Nugent appealed.
The Northern Ireland Court of Appeal subsequently considered McAlinden J’s leave ruling and released its findings in April this year.
The appeal concerned, among other things, the Article 2 principles, Bennett v UK, the Yellow Card and the applicable standard of review.
The Court of Appeal did considerably more than merely leave McAlinden J’s judgment undisturbed. On the central legal and factual issues, it affirmed his conclusions after conducting its own detailed analysis. But it also cleaned up parts of his reasoning and deliberately distanced itself from the strength of some of his language.
In summary, McAlinden’s substance survived almost intact; some of his formulation was qualified; his rhetoric was not adopted wholesale.
As for the public funding, the Court of Appeal independently concluded that the challenge was essentially a disagreement with the coroner, dressed up as judicial review, and expressly said that this was not an effective use of public funds.
As such, analysis shows the appeal did not rehabilitate the challenge — quite the opposite.
Article 2 and the correct test
The appellant argued that McAlinden had failed properly to apply Article 2’s requirement that lethal force be “absolutely necessary.”
The Court of Appeal rejected that directly.
It held that the settled law requires two linked questions: whether the state agent honestly and genuinely believed force was necessary, and whether the force used was reasonable in the circumstances as honestly perceived. It emphasised that McCann, Armani Da Silva and Duggan require the situation to be examined from the perspective of the soldier facing the imminent threat, not with hindsight.
It also rejected an attempted distinction between “absolute necessity” under Article 2 and the domestic proportionality/reasonableness test. The Court held that the Strasbourg and domestic standards operate in symmetry in this context and concluded: “The coroner and judge correctly applied this standard.”
So McAlinden’s central Article 2 proposition survived completely.
Status: expressly endorsed.
The standard of judicial review — the one genuine qualification
Here the Court of Appeal did identify a weakness in McAlinden’s presentation.
His judgment had variously referred to:
- “anxious scrutiny”;
- an “essentially supervisory” function;
- proportionality; and
- putting himself “in the decision-maker’s shoes.”
The Court of Appeal said the interchangeable use of these expressions was inconsistent and potentially distracting.
That is a real appellate criticism.
But it was a criticism of terminology rather than outcome.
Having examined what McAlinden actually did, the Court held that he had subjected the case to the required thorough scrutiny, applied the leave test properly and reached an entirely proper conclusion.
Status:
McAlinden’s formula for the standard of review: qualified.
McAlinden’s actual application of scrutiny: upheld.
“Freeze-frame” analysis and the eight shots
This is one of the clearest appellate endorsements.
McAlinden had objected vehemently to analysing eight aimed shots as though Soldier B had eight leisurely opportunities to reconsider. The firing occurred within approximately one to two seconds.
The Court of Appeal agreed explicitly:
Soldier B’s firing occurred within a one-to-two-second interval and a “freeze-frame or per-round disaggregation” was artificial and divorced from operational reality.
It went further and held that McAlinden’s approach actually aligned with Bennett, because Article 2 requires assessment from the perspective of the person making decisions in the moment, while avoiding hindsight.
The Court concluded that this provided a proper legal and practical basis for rejecting the proposition that every shot required discrete justification.
There is an interesting procedural detail: on appeal, counsel for Nugent did not pursue the proposition that every shot had to be justified individually. The Court describes that decision as having been made “wisely.”
Status:
McAlinden’s notorious “ludicrous” passage needs to be separated into two parts:
The adjective “ludicrous”: not adopted by the Court of Appeal.
The proposition he was describing as ludicrous: expressly vindicated.
That is stronger evidence than simply saying his judgment was upheld.
Specialist training and Bennett v UK
The appeal gave this question considerably more careful legal treatment than McAlinden had.
The appellant argued that Bennett imposed a special or enhanced substantive standard on highly trained firearms personnel.
The Court of Appeal rejected that interpretation.
It accepted that Bennett recognises that firearms-trained officers may properly be held to a higher standard of care than untrained civilians. But it said Bennett does not create a separate substantive test for justification. Training is a contextual factor informing the rigorous examination required under Article 2.
The governing question remains whether lethal force was absolutely necessary in the circumstances as honestly and reasonably believed.
That substantially validates McAlinden’s rather interesting point: Specialist training cuts both ways.
A highly trained soldier can properly be expected to display greater judgment and restraint. But his training is also relevant to his capacity to judge accurately and rapidly when lethal force is necessary.
The Court found no indication that McAlinden misunderstood Bennett. Indeed, his approach to the firing sequence was “consistent with the principles reaffirmed in that case.”
Status:
McAlinden’s result: endorsed.
His legal analysis: supplemented and made more precise by the Court of Appeal.
This makes the proposition safer to use.
The “unarmed driver”
This was perhaps the applicant’s strongest rhetorical point: Doris was an unarmed driver moving the vehicle away.
Both courts rejected the way that proposition was being used.
The Court of Appeal stressed that Soldier B’s evidence was that he did not know whether Doris was armed. More importantly, the legal question was not simply whether Doris personally held a rifle at a particular instant.
The three men had arrived as a PIRA active service unit to murder Soldier L. One passenger was aiming an AK-type rifle directly at him. Doris had driven the unit into position.
The Court of Appeal ultimately held that the coroner was legally entitled to regard the occupants collectively as presenting a threat.
Its language is itself unusually emphatic: “[It] would be absurd to disaggregate the driver from the other men in this case”, because all were active PIRA members participating in an ASU murder operation presenting an imminent threat to life.
This is important because the Court of Appeal was not merely deferring to the coroner.
It says having “considered that evidence ourselves…” before reaching its conclusion that Doris was part of the threat to life.
Thus McAlinden’s criticism of the retrospective “unarmed driver” formulation survived almost entirely, although the Court avoided his words “unfair, naive” and “detachment from reality.”
Status: Emphatically endorsed in substance.
Individual responsibility versus the collective ASU threat
The appellant argued that the coroner had improperly lumped Soldiers A–D together and had thereby failed individually to assess Soldier B.
The Court of Appeal rejected that too.
It found that the coroner had repeatedly examined Soldier B’s particular evidence and actions, including his deliberate firing at Doris. Where the coroner spoke collectively about the four soldiers, that reflected the operational reality: all four were responding to the same immediate threat in the same seconds-long episode.
Likewise, the occupants could properly be assessed as a collective threat without pretending their individual conduct was identical.
That is a useful distinction: Individual legal assessment does not require artificial fragmentation of a collective armed attack.
Status: The Court of Appeal expressly upheld that proposition.
Proportionality and absolute necessity
McAlinden had gone beyond simply holding that the coroner could reasonably reach his conclusion. He made his own “belt and braces” assessment and said he would reach the same result.
The appellant complained that this was effectively McAlinden substituting his own merits determination for proper judicial review.
The Court of Appeal rejected that characterisation.
It held that McAlinden had thoroughly scrutinised the case, properly applied the leave test and reached an entirely proper conclusion. It then added something important: After conducting “our own analysis”, the Court of Appeal reached the same view.
And it went further still, saying had leave been granted, “we would have dismissed the case on its merits.”
That removes almost any meaningful doubt about whether McAlinden’s ultimate proportionality conclusion was merely protected by the deferential nature of judicial review.
It wasn’t.
The appellate court independently reached the same substantive conclusion.
Status: strongly endorsed.
The Yellow Card
McAlinden treated Yellow Card compliance as very closely aligned with the Article 2 necessity/proportionality analysis and regarded the coroner’s finding as effectively unassailable.
The Court of Appeal upheld the result but articulated the law more carefully.
It said the Yellow Card was “a relevant but non-determinative guide.”
It was not itself a legal code exhaustively defining every circumstance in which lethal force would be lawful. The actual legal test remained whether Soldier B reasonably believed lethal force was necessary to meet an imminent threat to life.
Consequently, “non-compliance would not determine the legality of the force used.”
Nevertheless, the Court held that the coroner’s actual finding that Soldier B complied with the Yellow Card was rational and properly reasoned.
Status:
The appellate position is actually more precise.
Yellow Card compliance: upheld.
Yellow Card as the determinant of legal justification: rejected.
Adequacy of the coroner’s reasons
McAlinden called the coroner’s proportionality reasoning “clear, comprehensive and flawless.”
The Court of Appeal didn’t repeat “flawless”, but it agreed with the substance.
It rejected the argument that the crucial paragraphs were cursory or global in scope. It said the ruling had to be read as a whole and that the relevant findings were:
- detailed;
- clear;
- readily discernible;
- rational; and
- well reasoned.
It also emphasised something valuable in assessing the integrity of the inquest: Humphreys J criticised military planning and control where the evidence justified it. The Court considered that evidence of a balanced approach rather than an uncritical acceptance of the military case.
Status: endorsed, although without McAlinden’s superlative language.
Was this really an abuse or misuse of judicial review?
This requires precision.
McAlinden said Nugent had attempted “to mount a merits challenge against the coroner’s detailed findings under the guise of a judicial review.”
The Court of Appeal did not adopt the phrase “under the guise”, which carries a somewhat stronger implication about how the litigation was presented.
But its substantive conclusion is remarkably close, saying “the challenge really amounted to a disagreement with the coroner’s findings”, adding: “That is not the purpose of judicial review in this area…”
It would be safe to say that the Court of Appeal independently confirmed McAlinden’s essential criticism that the case sought to use judicial review to reopen factual conclusions with which the applicant disagreed.
It would be wrong to call it an “abuse of process”, unless some judgment actually uses that technical expression. Neither judgment appears to make such a formal finding.
“Misuse of judicial review” in a descriptive sense is defensible; “abuse of process” is too strong.
Legal aid and public funds
Perhaps the most interesting development is that the appellate judgment strengthens the point on legal aid.
McAlinden had expressly said he was surprised that legal aid had been made available to fund the challenge.
The Court of Appeal does not review the legal-aid decision or say that the Legal Services Agency acted wrongly in granting a certificate.
It also deliberately says: “We do not express ourselves in such strong terms as the judge did…”
That plainly encompasses McAlinden’s more caustic rhetoric.
But the Court then makes its own public-funding criticism: “That is not the purpose of judicial review in this area or an effective use of public funds even when article 2 is engaged.”
That sentence is arguably more telling than McAlinden’s legal-aid remark.
Why?
Because McAlinden expressed surprise at a funding decision.
The Court of Appeal expressly concluded that this litigation was not an effective use of public funds.
Those are different propositions.
The latter is a three-judge appellate court’s assessment, after considering the appeal and the evidential record.
And the Court made that statement even while recognising the importance of Article 2. Its qualification — “even when Article 2 is engaged” — prevents the obvious rebuttal that rigorous scrutiny of deaths involving state force automatically justifies any resulting litigation expenditure.
That is, indeed, a significant finding.
What happened to McAlinden’s severe language?
McAlinden used expressions including “ludicrous”, “utterly divorced from reality”, “naive”, “utterly groundless”, and “poor argument without substance.”
The Court of Appeal expressly declined to go that far: “We do not express ourselves in such strong terms as the judge did…”
That should not be taken as the Court rebuking him for using the language or disagreeing with the substance behind it.
Immediately afterwards it:
- agreed the challenge amounted to disagreement with the coroner;
- said that was not the proper purpose of judicial review;
- said it was not an effective use of public funds;
- held McAlinden correctly refused leave; and
- dismissed the appeal.
So the correct characterisation is:
The Court of Appeal moderated McAlinden’s tone, not his ultimate assessment of the case.
Indeed, on several issues it used strong language of its own. Most notably, it called separating Doris from the armed ASU threat “absurd.”
The appellate hierarchy creates a stronger proposition
Before the appeal, one could fairly say: A single High Court judge thought this challenge meritless and questioned why it was publicly funded.
Now, the position is materially stronger: A three-member Northern Ireland Court of Appeal examined the arguments afresh, confirmed that the Article 2 tests had been correctly applied, endorsed the operational-reality analysis, rejected the attempt to distinguish the unarmed driver from the armed ASU threat, held that the case would have failed even had leave been granted, and concluded that litigation amounting merely to disagreement with the coroner was not an effective use of public funds.
If we were building an evidence ledger, these four are the highest:
- · Retrospective disaggregation. The Court expressly endorses the view that analysing a one-to-two-second engagement on a per-shot, freeze-frame basis is artificial and detached from operational reality.
- · Collective threat. The Court itself reviews the evidence, finds Doris to be part of the imminent threat, and says that disaggregating him from the armed ASU would be absurd.
- · Merits. Even had leave been granted, the Court says confidently that it would have dismissed the claim on its merits.
- · Public funding. The challenge essentially amounted to disagreement with the coroner; judicial review is not for that purpose, and such litigation is not an effective use of public funds, even where Article 2 is engaged.
That final passage changes the value of this case to wider veteran concerns.
Nugent is not merely an anecdote about one irritated judge questioning legal aid.
It is appellate authority containing an express judicial criticism of the effective use of public funds in a legacy judicial review.
To be sure, it remains a single case and cannot, by itself, prove systemic misuse of legacy funding.
But it is unusually strong primary evidence of what such misuse can look like in a concrete case.
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