Gina McIlveen fails in bid to halt prosecution for assault on son's convicted murder

Gina McIlveen issued High Court proceedings after the gang member who inflicted baseball bat blows on her 15-year-old son Michael in Ballymena, Co Antrim 11 years ago withdrew his complaint.

Mervyn Moon does not want to cause her any further grievances by pursuing claims she slapped him on the face during a chance encounter, judges were told.

Lawyers for Ms McIlveen, 46, claimed it was irrational to continue with the prosecution in those exceptional circumstances.

But dismissing her challenge, Mr Justice McCloskey pointed out that she has made admissions in the case.

He said: “It cannot be said... that the decision to maintain this prosecution lies outwith the range of decisions that a reasonable prosecutor could take in the circumstances.

“If it were a question of expressing sympathy or understanding, this court does not hesitate to recognise sympathy and understanding are clearly to be applied to this highly unfortunately set of circumstances which developed abruptly and unexpectedly on the day in question.”

Ms McIlveen, from Glendun Drive in Ballymena, is accused of assaulting 29-year-old Moon on 14 August this year.

She allegedly pulled his hat off and slapped him when they met in public by chance, the court heard.

According to her account she was in a state of shock upon suddenly encountering one of her son’s murders.

Michael McIlveen, known as Mickybo, died from brain injuries sustained after being kicked and beaten by Protestant youths who pursued him into an alleyway in his hometown in May 2006.

Moon, from Douglas Terrace in Ballymena, was said to have wielded the baseball bat handed to him by another gang member.

He pleaded guilty to murder and is out on licence after serving a minimum 10-year prison sentence.

Ms McIlveen’s legal challenge centred on the Public Prosecution Service (PPS) decision to press ahead with a criminal case against her.

Referring to Moon’s withdrawal statement, her barrister Craig Patton said: “We have an injured party who doesn’t want to cause the applicant any further grievances.”

But Philip Henry, responding for the PPS, insisted that was not enough to halt the prosecution.

Claiming a lack of complete candour about similar minor incidents in Ms McIlveen’s past, he contended: “This case comes nowhere near the threshold of an exceptional case.”

Following submissions Mr Justice McCloskey acknowledged she has suffered the “appalling loss of her son... in a vicious sectarian attack”.

He ruled, however, that she had failed to overcome the hurdle for establishing the decision was arguably unlawful.

The judge added: “There may be quite substantial mitigation on Ms McIlveen’s behalf, and the forum in which that should and will be ventilated is that of the criminal court in question.” ends