'Reasonable' force used by soldier who partially blinded schoolboy, judge rules

”Reasonable force” was used by a soldier who fired a baton round which partially blinded a Co Armagh schoolboy 26 years ago, a High Court judge has ruled.

A £225,000 compensation claim has been rejected by the judge after finding that the lance corporal and a military colleague genuinely feared for their safety during a sustained attack in Lurgan.

In April 1997 Gavin McKenna, then aged 13, sustained a permanent eye injury when struck in the face by the baton round near the town’s staunchly republican Kilwilkie estate.

He said: “If they had been cut off from the rest of their patrol these two isolated soldiers, surrounded by a large number of missile throwing youths, could have been seriously injured.”

Mr McKenna sued the Ministry of Defence for negligence, insisting he was an entirely innocent victim out gathering wood for a bonfire with two friends.

The MoD argued reasonable force had been deployed after a six-man Royal Irish Regiment foot patrol was targeted by up to 30 youths hurling stones, bricks and bottles.

A single, aimed baton round was fired at another identified target in the crowd because of the risk to the soldiers’ lives and wellbeing, according to the defendant.

With the level of potential damages agreed at £225,000, the case centred on a dispute over liability.

In evidence Mr McKenna recalled being hit by the plastic bullet as he stood up in a field beside the Antrim Road.

He stated that he was unaware of any Army unit in the area and specifically denied involvement in any public disorder that night.

The ex-soldier who fired the round told the court one group of youths came out of the Kilwilkie estate to attack his unit before a second crowd emerged from a wooded area to throw more missiles.

Along with a senior ranking corporal, he became separated from the other four members of their patrol at the Bell’s Row crossing.  

Fearing they were to be completely cut off from the rest of the unit as part of a pre-planned ambush, the former lance corporal said: “The concern is that they end up taking your weapons off you and then use the weapons against you.”

The corporal gave him the order to fire the baton gun at another youth 30 metres away with a Celtic scarf over his face and apparently getting ready to throw a rock, the court heard.

He aimed at the target’s legs but could not say who the round struck.

Both soldiers were then able to sprint down the road, rejoin the rest of their patrol and return to Lurgan police station.

Assessing the two conflicting accounts, Mr Justice McAlinden said it was extremely unlikely that the lance corporal would have been ordered to fire at a youth if no-one was posing any threat - especially as a newly appointed major was part of the patrol as an observer.

Citing the plaintiff’s status as a member of Republican Sinn Fein, the judge added it was reasonable to conclude he had a “long-standing animus” towards the military.

Mr McKenna was neither the intended target nor part of the crowd advancing towards the soldiers, but had been struck on the head while still crouching or hunkering down, he concluded.

“The two soldiers honestly believed that the group of youths that was attacking them from the field beside the Antrim Road were intent upon entering the road in order to cut them off from the rest of the patrol,” Mr Justice McAlinden held.

“They genuinely feared for their own safety.”

The judge confirmed: “I am satisfied that the manner in which the baton gun was discharged constituted the use of force which was reasonable.”

Dismissing the claim for compensation, he acknowledged it was “very unfortunate” that Mr McKenna had been struck and seriously injured by a round which missed the intended target.

However, he maintained: “Be that as it may, I have found that the circumstances in which (the lance corporal) fired the baton gun and the manner in which he fired the baton gun were entirely justified on the night in question.”

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