Lurgan man partially blinded by baton round as a schoolboy to appeal ‘reasonable force’ ruling

Gavin McKenna is challenging a High Court ruling that the British soldier who fired the plastic bullet in Lurgan used reasonable force.

Northern Ireland’s Lady Chief Justice, Dame Siobhan Keegan, confirmed on Wednesday that the case will be heard in October.

In April 1997 Mr 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 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 to the High Court, 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 British Army unit in the area and specifically denied involvement in any public disorder that night.

The former lance corporal who fired the round said 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 ex-soldier stated the concern was their weapons would be taken and used against them.

He was ordered 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.

In February this year a High Court judge dismissed the claim for compensation. He found that the lance corporal and his military colleague had come under sustained attack and genuinely feared for their safety.

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

Despite acknowledging the plaintiff had been very unfortunate to be seriously injured, he held that the soldier had been entirely justified in firing the baton round.

That determination is now set to be challenged at the Court of Appeal.

Lawyers representing Mr McKenna may also seek to introduce new material featured in a BBC Spotlight programme about the use of plastic bullets against children during the Troubles.

Solicitor Gavin Booth said outside court: “We contend that this action was wrongly decided on a fundamental point about negligence.

"This case has caused outrage among several families who lost children to plastic bullets during the conflict.”