A Co Armagh man struck and partially blinded by a baton round as a schoolboy “never got the rub of the green” in his failed £225,000 compensation claim, the Court of Appeal has heard.
Counsel for Gavin McKenna argued that a judge wrongly rejected his version of events in finding the British soldier who fired the plastic bullet in Lurgan used reasonable force.
Patrick Lyttle KC insisted: “He is an innocent victim who was shot in this case.”
In April 1997 Mr McKenna, then aged 13, sustained a permanent eye injury when hit in the face by the baton round near the town’s staunchly republican Kilwilkie estate.
He sued the Ministry of Defence for negligence in being struck while 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 Army’s account.
With the level of potential damages agreed at £225,000, the case centred on a dispute over liability.
In evidence to the original High Court hearing, 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 colleague, 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.
In February this year a High Court judge ruled that the two soldiers 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, he found, but had been struck on the head while still crouching or hunkering down.
Dismissing the claim for compensation, the judge declared the lance corporal entirely justified in firing the baton round.
But lawyers for Mr McKenna maintain the case was wrongly decided on issues about the conflicting accounts and scale of disturbances which he played no part in.
Disputing claims the soldiers came under bombardment during a full-scale riot, Mr Lyttle told the Court of Appeal that no members of the patrol were injured.
“If that is correct they must be very bad shots around the Lurgan area,” he said.
“It beggars belief. On the defence case this was a premeditated attack by dozens of people that have stored up missiles, bottles, pieces of metal and a catapult, yet not one person in that patrol was struck.”
Contradictory findings were also reached on disputed claims the baton round was fired while the victim was in a crouched position, according to counsel.
“If he was hunkered down that would excuse (the lance corporal) because it means he aimed low,” Mr Lyttle submitted.
He argued Mr McKenna had been in a standing position and that the soldier should not have missed his intended target when firing at that range.
“The plaintiff in this case never got the rub of the green on any significant point,” the barrister said.
The appeal continues.