Young v Downey [2019] EWHC 3508 (QB)

Young v Downey [2019] EWHC 3508 (QB) was a civil claim for damages arising from the 1982 Hyde Park bombing brought by the daughter of Lance Corporal Jeffrey Young, one of four soldiers killed when an IRA bomb was detonated as members of the Household Cavalry rode past. Mrs Justice Yip, sitting in the High Court, found the defendant liable as a joint tortfeasor for the unlawful killing and remitted quantum for later assessment.

The claimant, Sarah Jane Young, was aged four at the time of the attack on 20 July 1982. Her father died of his injuries the following day. The bomb, concealed in a car boot and remotely detonated, also killed Lieutenant Anthony Daly, Trooper Simon Tipper, and Squadron Quartermaster Corporal Roy Bright, injured 31 others, and resulted in seven horses being destroyed. The claimant, who had been in the nursery at the Hyde Park Barracks, witnessed the injured soldiers returning. She brought claims for damages for her own psychiatric harm as a secondary victim and under the Fatal Accidents Act 1976 on behalf of dependants, as well as seeking aggravated and exemplary damages.

The defendant, John Anthony Downey, had been arrested in May 2013 and charged with four counts of murder and one of doing an act with intent to cause an explosion. On 21 February 2014, Sweeney J stayed the indictment as an abuse of process after it emerged that the defendant had been provided, in error, with a letter of assurance under the administrative scheme for “on the runs” in Northern Ireland, stating he was not under investigation. The defendant had relied on that assurance in travelling to Gatwick Airport, where he was arrested. Following the collapse of the criminal proceedings, the claimant issued civil proceedings in February 2017. The defendant filed a defence denying involvement and challenging both identification and fingerprint evidence, but thereafter did not participate in the proceedings. At the time of trial he was detained in Maghaberry Prison in Northern Ireland awaiting trial for other offences.

The trial proceeded in the defendant’s absence before Mrs Justice Yip, who heard oral evidence from a survivor of the bombing, the claimant herself, and two experts instructed by the claimant. Other evidence was adduced by way of written statements, many of which originated from the Metropolitan Police investigation. The court directed a split trial on liability and quantum, with limitation to be determined at the liability stage.

The defendant had raised limitation in his defence, asserting that his name had been in the public domain as a suspect since the 1980s. The claimant contended that her date of knowledge of the defendant’s identity for the purposes of section 14 of the Limitation Act 1980 was not until February 2014, when Sweeney J delivered his ruling. Mrs Justice Yip heard evidence from the claimant and accepted her account that she had not understood the defendant’s involvement until her mother sat her down after the ruling and explained matters. The judge considered it unusual for date of knowledge to focus on the identity of the defendant, and found that the claimant could reasonably have been expected to acquire knowledge by at least 2013. Accordingly, the judge approached the case on the basis that the primary limitation period had expired before proceedings were issued, and considered whether to exercise her discretion under section 33 of the Limitation Act 1980 to allow the claim to proceed. In relation to the claim brought by the claimant’s mother under the Fatal Accidents Act, it was conceded that the primary limitation period had long since expired.

Mrs Justice Yip considered all the circumstances and the balance of prejudice required by section 33. She found the reasons for delay wholly excusable. The claimant had not contemplated civil proceedings until the collapse of the criminal trial, and had been entitled to expect that the state would bring those responsible to justice through criminal prosecution. It would have been unusual and risked prejudicing the prosecution for a civil claim to be brought earlier, and as a matter of public policy it would be undesirable to encourage such claims while the prospect of prosecution remained. The claimant had acted promptly after 2014, issuing within three years of Sweeney J’s decision and prosecuting the claim expeditiously. The judge was satisfied that the evidence relied upon by the claimant was no less cogent than it would have been had the claim been brought earlier; the essential scientific and fingerprint evidence remained available and open to independent verification. The defendant had called no evidence and had not discharged the evidential burden of showing his evidence had become less cogent, nor demonstrated any prejudice from delay. A fair trial had been possible. Sweeney J had held in 2014 that a fair criminal trial would have been possible but for the letter of assurance. To suggest the defendant should not face a civil claim for damages because of delay would be inconsistent with that. Mrs Justice Yip exercised her discretion under section 33 to allow the claim to proceed, including for the benefit of the claimant’s mother.

The claim was brought in trespass to the person, intentional infliction of harm, and conspiracy to injure, though the latter two were not pursued at trial. The judge held that intentional unlawful killing was tortious conduct, and that a person who participated with others in a joint enterprise to commit such an act was liable as a joint tortfeasor. The claimant bore the burden of establishing her case to the civil standard, the balance of probabilities, with appropriate respect paid to the need for cogent evidence given the serious nature of the allegation. The claimant founded her case on fingerprint evidence, having sensibly elected not to rely on identification evidence, which the defendant had challenged in his defence and which could not be independently verified.

The evidence established that the explosion was caused by a radio-controlled improvised explosive device consisting of approximately 25 pounds of Frangex explosive placed in the boot of a blue Morris Marina, registration number LMD 657P. A large quantity of nails had been placed as shrapnel, directed towards the passing troop. The car had been positioned opposite to the direction of travel to bring the device as close as possible to the Guard. The bomb was detonated precisely as the centre of the troop passed, killing the three soldiers riding in the middle and Trooper Tipper one place back on the left. The IRA had claimed responsibility in a telex message received by the BBC shortly after the attack. The claimant’s explosives expert, Kim Simpson, had reviewed the historical evidence and gave clear and helpful evidence. Mrs Justice Yip accepted that the bombing was carefully planned, intentional, and designed to kill or seriously injure. The device was consistent with IRA methods. The car had been purchased at a British Car Auctions site in Enfield on 13 July 1982 by a man with an Irish accent, and had been parked in a car park in Portman Square on 17 to 18 July, then at the Royal Garden Hotel car park from the evening of 18 July until the morning of the bombing.

Parking tickets from both car parks were obtained by the police. Fingerprints on those tickets were matched to the defendant by David Tadd in 1983 and later by Ann Cunningham in 2019, both senior fingerprint officers with the Metropolitan Police. The defendant’s fingerprints had been taken following his arrest in May 2013. In his defence, the defendant disputed the reliability of the fingerprint evidence and referred to the conviction of Gilbert McNamee for involvement in the Hyde Park bombing, which had been quashed by the Court of Appeal in 1998 after doubts were raised about fingerprint identification evidence. Mrs Justice Yip reviewed the judgment in R v McNamee and found no basis for suggesting that it cast doubt on the integrity of Mr Tadd’s evidence generally. The evidence of Mr Tadd and Ms Cunningham was relied upon only as to continuity.

The claimant instructed an independent fingerprint expert, Stephen Hughes, who examined the original parking tickets in March 2019. Mrs Justice Yip found Mr Hughes to be an impressive expert. He confirmed that continuity appeared to have been maintained in accordance with standard police procedures. The judge was satisfied that the tickets provided to Mr Hughes were the original tickets seized from the two car parks and that KS/1 was one of three tickets issued when the Morris Marina entered Portman Square and OB/2 was the ticket issued at the Royal Garden Hotel. Mr Hughes adopted a holistic approach and found enough ridge characteristics in prints on both tickets to be confident of a match. He had absolutely no doubt that the marks were made by the defendant. One print on the Royal Garden Hotel ticket was a particularly good mark, with 21 ridge characteristics. Mrs Justice Yip was satisfied that the fingerprints on both tickets were made by the defendant. The defendant had provided no explanation for how his fingerprints could be on the tickets other than that he had been responsible for parking the car in the days before the bombing.

Mrs Justice Yip found as facts that Lance Corporal Jeffrey Young and the three other soldiers were unlawfully killed by persons acting together in the name of the IRA; that the deaths resulted from a deliberate, carefully planned attack designed to kill and maim; that the Morris Marina was bought on 13 July 1982 by an Irishman who was likely one of the conspirators; that the car remained in the possession of the conspirators during the following week while the bomb was assembled; that the car was parked in the two car parks on the dates described; that the defendant’s fingerprints were on the parking tickets; that there could be no sensible explanation for those fingerprints other than that the defendant was responsible for moving the car between car parks and was probably driving it on the morning of 20 July; that the defendant was a member of the IRA as evidenced by his 1974 conviction; and that it was reasonable to infer that the defendant was knowingly involved in the concerted plan to detonate the bomb specifically targeted at the passing Guard.

Mrs Justice Yip found that the defendant was an active participant in the Hyde Park bombing which caused the death of the claimant’s father and the other soldiers, that his participation was part of a concerted plan aimed at killing or at least doing really serious harm to members of the Household Cavalry, and that as a joint tortfeasor he was responsible for the unlawful killing of the claimant’s father. The claimant was therefore entitled to recover damages, the extent of which would be determined later. The judge remitted the claim to the Master for further directions as to quantum.

In short, the court exercised its discretion to disapply limitation and found the defendant liable as a joint tortfeasor for the unlawful killing of the claimant’s father in the 1982 Hyde Park bombing, based on compelling fingerprint evidence linking him to the car in which the bomb was planted.

Ashley and Another v Chief Constable of Sussex Police [2008] UKHL 25
Brooke v Bool [1928] 2 KB 578
Shah v Gale [2005] EWHC 1087 (QB)
Credit Lyonnais v E.C.G.D [1998] 1 Lloyds Rep 19
Re D [2008] UKHL 33, [2008] 1 WLR 1499, [2008] 4 All ER 992
R v McNamee [1998] 12 W LUK 408
Re B [2008] UKHL 35, [2009] 1 AC 11