Police have been accused of engaging in a “determined effort” to ensure that the inquest into the murder of a GAA official in 1997 cannot be completed.
A lawyer for the family of Seán Brown told a review hearing in his inquest that there was now a “pattern of noncompliance with court directions” by the Police Service of Northern Ireland (PSNI).
The coroner in the case, Justice Patrick Kinney, also expressed his frustration as the hearing was told of further delays in the disclosure of police material about the shooting.
Mr Brown (61) was abducted and killed by loyalists as he locked the gates at Bellaghy Wolfe Tones Club in May 1997.
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No one has been convicted of his murder.
His inquest began in March and is scheduled to resume next January.
However, one of the provisions of the British government’s legacy Bill, which is awaiting royal assent, is that any legacy inquests which have not reached the point of verdict by May 1st, 2024, will be discontinued.
Members of Mr Brown’s family attended the hearing at the Royal Courts of Justice in Belfast.
Opening the hearing, counsel for the coroner Joseph Aiken KC said the coroner’s representatives had been doing everything possible to have the PSNI sensitive material disclosed.
He said: “Everybody has the timetables that you set in January, which were not complied with; in February, which were not complied with; and the timetable you set in micro-detail on June 12, and the sensitive material is still not in the hands of the legal representatives of the next of kin.
“The issue for you is how this state of affairs can be allowed to continue.”
PSNI barrister Mark Robinson said the process of gathering relevant material for the public immunity interest (PII) process continued.
He said: “The process involves the gathering of all the potentially relevant material so that the decision maker looks at each redaction and considers the balancing exercise between the protection of national security and open and transparent justice.”
He said the examination of closed notes in the case had led to further documents being collated.
Mr Robinson said: “We are working strenuously to get this matter moving and will continue to do so.
“There has been no attempt to frustrate the court. This is the way PII can unfold.”
Mr Justice Kinney described the lack of progress as a “lamentable position”.
He added: “The fact that it is the way historically it has been dealt with does not make it satisfactory or acceptable, and particularly in the context that we all are aware of where legislation which is anticipated will be on the statute books in the very near future, has a significant impact.
“If we do not have this inquest completed before that deadline, it will not be completed.
“That places pressure and responsibility on all parties to find ways in which to make this happen.”
Mr Robinson then told the court that another issue had arisen over sensitive materials from the Police Ombudsman’s office which would need to be considered by police.
Mr Justice Kinney said: “There is another matter which the PSNI is now raising on September 15 against the hearing which I have set up for January of next year.
“Now I am being told there are fresh matters that are being raised for the first time along with documents which are being found for the first time, three folders of documents which appear to have been generated in recent weeks with a fourth folder not yet generated and an open question mark over how many other folders may be generated before this matter completes.
“That does cause me, and I think anybody listening to this would be greatly concerned that the PSNI seems to have so little control over its documentation that it keeps finding things at this late stage, 25 years later.”
His counsel Mr Aiken said: “It appears that whatever directions you give the PSNI are not going to comply with them in this case.
“You will have to take a view whether a point has been reached when what has been occurring is so unsatisfactory that something else must be done.”
Barrister for the Brown family Des Fahy KC said he had been listening to the proceedings with a “sense of disbelief”.
He added: “It is clear to us and the next of kin that there is now a culture and a pattern of noncompliance with court directions.
“This is not good enough and the explanations that you have heard are simply not good enough.
“The time may now have come to take some radical steps to ensure that what was promised to these families over decades takes place, that is an Article 2-compliant inquest.
“If the state parties have not been able to comply with the deadline for the PII application then the court should consider proceeding with this inquest without that in place and they would have to accept what flows from that position.”
He continued: “Our concern is that what is going on here is a determined effort to ensure that this inquest is not heard by the May 1 cut-off date.
“That is the inescapable conclusion of what is going on here.”
Mr Fahy said the January date for the resumption of the inquest should remain “fixed in stone”.
Mr Justice Kinney said he would hold another review hearing on October 2nd.
He said that if by then he was not receiving “the co-operation and assistance that I require” he would look at what powers were open to him to move the matter forward.
He added: “It is highly probable at that stage if I am being told simply of difficulties, I will require witnesses to come down and explain to me in detail [why] what I have directed is not being complied with.”