|
in Russin
THIRD SECTION
CASE OF
McKERR v. THE UNITED KINGDOM
(Application no.
28883/95)
JUDGMENT
STRASBOURG
4 May 2001
FINAL
04/08/2001
In the case of
McKerr v. the United Kingdom,
The European Court of
Human Rights (Third Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having deliberated in
private on 4 April 2000 and 11 April 2001,
Delivers the
following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case
originated in an application (no. 28883/95) against the United Kingdom of Great
Britain and Northern Ireland lodged with the European Commission of Human Rights
(“the Commission”) under former Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national,
Mrs Eleanor Creaney, on 7 March 1993. Mrs Creaney died in November 1996. Her son
Jonathan McKerr (“the applicant”) has continued the
application.
2. The applicant,
who had been granted legal aid, was represented by Mr K. Winters and Mr S.
Treacy, lawyers practising in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent.
3. The applicant
alleged that his father Gervaise McKerr had been shot
and killed by police officers on 11 November 1982 and that there had been no
effective investigation into or redress for his death. He relied on Articles 2,
13 and 14 of the Convention.
4. The application
was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the
Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application
was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. Having consulted
the parties, the President of the Chamber decided that in the interests of the
proper administration of justice, the proceedings in the present case should be
conducted simultaneously with those in the cases of Hugh Jordan v. the United
Kingdom (no. 24746/94), Kelly and Others v. the United Kingdom (no.
30054/96) and Shanaghan v. the United Kingdom (no. 37715/97).
7. Third-party
comments were received from the Northern Ireland Human Rights Commission on 23
March 2000, which had been given leave by the President to intervene in the
written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).
8. A hearing took
place in public in the Human Rights Building, Strasbourg, on 4 April 2000.
There appeared before
the Court:
(a) for the Government
Mr C. Whomersley, Foreign and Commonwealth Office, Agent,
Mr R. Weatherup QC,
Mr P. Sales,
Mr J. Eadie,
Mr N. Lavender, Counsel,
Mr O. Paulin,
Ms S. McClelland,
Ms K. Pearson,
Mr D. McIlroy,
Ms S. Broderick,
Ms L. McAlpine,
Ms J. Donnelly,
Mr T. Taylor, Advisers;
(b) for the applicant
Mr S. Treacy QC,
Ms K. Quinliven, Counsel,
Ms P. Coyle, Solicitor.
The Court heard
addresses by Mr Treacy and Mr Weatherup.
9. By a decision of
4 April 2000, the Chamber declared the application admissible [Note
by the Registry. The Court’s decision is obtainable from the Registry].
10. The applicant
and the Government each filed observations on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES
OF THE CASE
A. Events relating
to the death of Gervaise McKerr
11. On 11 November
1982 Gervaise McKerr was driving a green Ford Escort,
registration no. UPF 775. There were two passengers in the car: Eugen Toman and
Sean Burns. None of the men was armed. At Tullygally Road, East Lurgan, at least
109 rounds were fired into the car by police officers of a specially trained
mobile support unit of the Royal Ulster Constabulary (RUC). All three men were
killed.
12. The facts
relating to the death of Gervaise McKerr remain in
dispute despite over ten years of inquest proceedings, three criminal
prosecutions and other related legal proceedings.
Concerning the
criminal trial and police investigations
13. On 11 November
1982 steps were taken by Chief Inspector Whirter to preserve the scene of the
shooting. A doctor attended the scene and conducted a preliminary examination of
the bodies. On 12 November 1982 a forensic expert from the Northern Ireland
Forensic Science Laboratory conducted a detailed examination of the scene and
Professor Marshall carried out post-mortem examinations of the bodies.
Photographs were taken of the scene and the bodies, and maps drawn up. On the
same day the scene of crimes officer took possession of the police officers’
rifles, a submachine gun and pistol. About eighty-four of the cartridges fired
at the scene were recovered (leaving twenty-five unaccounted for). The police
made house-to-house enquiries in the vicinity, in conjunction with an appeal in
the press for any witnesses to come forward, and a meeting was organised with a
local councillor.
14. As part of the
investigation, on 15 November 1982, Detective Chief Inspector Scott interviewed
three RUC officers from the five-member mobile support unit. Sergeant M.,
Constable B. and Constable R. made written statements. These statements
described the incident but did not mention that the deceased were the subject of
surveillance by Special Branch officers and were believed to have set out to
commit a murder. The officers had received instructions from the deputy head of
Special Branch not to refer to the fact that they were Special Branch officers
or that they had intelligence made available to them in advance of the incident.
It was later alleged that this was in order to prevent the availability of
advance intelligence becoming public knowledge and hampering efforts to fight
terrorism.
15. On 18 January
1983 the three officers, M., B. and R., were interviewed again in the light of
the available forensic evidence. Written records were made of these interviews.
16. The results of
the RUC investigation were sent to the Director of Public Prosecutions (DPP) to
consider whether any prosecution should be brought. The DPP requested that
further inquiries be made. On 19 and 20 July 1983 the three officers were
interviewed, and on this occasion they stated that they had been briefed that
the three deceased were the subject of surveillance and were believed to have
set out to commit a murder.
17. Shortly
afterwards, the DPP decided that charges should be brought against these three
officers (“the three defendants”). The indictment was issued on 8 March 1984
and, as amended on 29 May 1984, charged B. with the murder of Eugene Toman, and
M. and R. with aiding, abetting, counselling and procuring B. to commit that
offence.
18. The trial of the
three defendants took place in Belfast between 29 May and 5 June 1984 before
Lord Justice Gibson, sitting without a jury. The prosecution case involved
twenty-seven witnesses appearing at the trial to give evidence, while statements
from a further eleven witnesses were read out. Over seventy-five exhibits were
submitted in evidence.
19. At the close of
the prosecution case Lord Justice Gibson found that the evidence against the
three defendants did not establish their guilt and, concluding that there was no
case to answer, acquitted them. In his judgment giving his reasons for this
conclusion, he stated:
“The accused were
tasked to arrest Toman and Burns on suspicion of having committed terrorist
acts, including murder, and to prevent them carrying out a further murder which
the police authorities had reason to believe was about to be attempted.
Each of the accused
was so advised by his superiors and was further informed that the suspects would
probably be armed and that they were both dedicated and dangerous terrorists who
had let it be known that they would not be arrested alive. If they were arrested
therefore it would be known to all concerned that firearms would probably have
to be used to effect their arrest.
The degree of danger
of the operation which was anticipated may be judged by the fact that the three
accused were issued with one submachine gun, two Ruger rifles, three
semi-automatic pistols and a total of almost 200 rounds of ammunition.
The deceased were
under surveillance and according to information received they set off in a car
driven by McKerr with the object of carrying out the
proposed murder. A road block was then set up by the police in order to stop and
arrest them.
They broke through the
road block at high speed endangering the life of a police officer in so doing.
The accused who were in a car nearby immediately gave chase. Shots were
discharged after the escaping car.
At this point I had to
be careful in assessing the evidence to leave out of account any self serving
parts of statements made by the accused.
It was a dark wet
November night and the forensic evidence satisfies me that bullets striking the
rear window and other metal parts at the rear of the car would in such
conditions emit flashes which could readily be mistaken for the muzzle flashes
of guns fired from the back of the car especially after the rear window was
broken as it was.
... I have no doubt
that it was a reasonable conclusion that the accused were being fired at. In
fact none of the persons escaping did have any firearms but each of the accused
opened fire from their car as they travelled at high speed along the Tullygally
East Road ...
I have no doubt that
at this stage each of the accused was acting lawfully in shooting at the three
deceased as being the only practicable means of effecting their arrest and if
need be of killing them in order to stop their escape and prevent the
perpetration of murder ...
Quite apart from any
question of self defence which may have been raised as a result of the apparent
gun flashes from the car, the car, driven by McKerr,
was driven at high speed. It failed to negotiate a turn to the right to a slip
road and it came to a rest a matter of 40 to 50 feet up the slip road just off
the left hand verge and on the sloping ground giving a drop of some four feet.
The car in which the three accused were pulled up on the other side of the road.
All jumped out.
Without reference to
the statements of the accused and relying exclusively on other Crown evidence it
is clear that the passenger door of the car ... opened. The front passenger was
Toman and in the rear seat was Burns.
The evidence of [the
forensic expert], which I accept, was that the ... experiments which he carried
out [showed that] the opening of the passenger door from inside produced two
distinct metallic sounds, the first like the slide of a gun hitting the back
blade; the second like the slide hitting the front blade. These sounds were
heard by him distinctly at a distance of twenty feet.
The Crown case is that
after the door was opened ... some or all of the accused struck Toman in the
back as he stood outside the car killing him instantly. ... the passenger side
of the car would have been in shadow. In my view it matters not whether the
accused on hearing the noise of the door being opened concluded that this was
what was happening or whether they thought that one of the occupants of the car
was preparing to open fire on them.
In either event the
act of shooting was not murder. In any event the noise established that one or
more of the occupants was alighting. If the noise was taken to be indicating
that the front passenger was preparing to get out of the car that could only be
interpreted as an attempt to get down the hill to escape into the country beyond
or being an attempt to take up a position behind the car with the intention of
opening fire. If on the other hand the noise was taken to be the operation of a
gun slide it was unmistakable that a gunman proposed to open fire and immediate
retaliatory action was required.
As seen and understood
by the accused the car contained three men, at least two murderous gunmen who
had not merely given no indication of submission but seemed prepared to shoot it
out or at least escape in the dark. In those circumstances to open fire was to
my mind the most obvious and only means of self defence and the only step
consistent with their duty. Apart from running away it was the only reasonable
course open to them.
It was in my view the
use by them of such as was reasonable in the circumstances as appreciated by
them, including their understanding of the mortal danger in which they were to
effect arrests even though it may be by killing and to prevent the commission of
the contemplated murder.
Their use of gunfire
into the car was therefore plainly lawful within the terms of Section 3 of the
Criminal Law Act (Northern Ireland) 1967 as well as being the commensurate force
for their own self-defence. ...
There was no time to
my mind to weigh up the possibilities. At all costs and at all possible speed
the danger had to be eliminated otherwise the consequences might have been fatal
to themselves.
As I have read the
papers and as I understand the evidence there never was the slimmest chance that
the Crown could have hoped to secure a conviction. ...”
20. The judge
concluded with these comments:
“I speak not of the
inevitable concerns and worries of the accused or the additional danger that
they are now likely to be in because their identities and appearances have been
publicly exposed by this trial. I am thinking of the very widespread effects
among other members of the police and indeed of the armed forces generally when
a policeman or a soldier is ordered to arrest a dangerous criminal and ... to
bring him back. How is he to consider his conduct?
May it not be that
some may now ask ‘Am I to risk my life carrying out this order knowing that if I
survive my reward will be a further risk of life imprisonment as a murderer’.
One would hope that they will accept the first risk as part of their duty but
should they not also be entitled to expect that if they do so they will have the
protection of the law unless it should appear with total blindness they may have
overstepped the bounds of the criminal law.
As far as the three
deceased men who unhappily forfeited their lives are concerned they died not
because they were victims of murder but because knowing that two of them were
wanted by the police on a charge of multiple murder and many other crimes they
decided not to stop when confronted by the police and to risk all in an attempt
to escape. It was a gamble which failed.
There is just one
final observation which I would like to make. ... I want to make clear that
having heard the entire Crown case exposed in open court I regard each of the
accused as absolutely blameless in this matter.
I consider that in
fairness to them that finding also ought to be recorded together with my
commendation for their courage and determination in bringing the three deceased
men to justice, in this case to the final court of justice.”
Shortly after giving
judgment, Lord Justice Gibson made a statement in open court:
“Having regard to the
widespread publicity which parts of my judgment have received and the
observations which have been made upon it in the press and elsewhere, I have
considered it desirable to clarify my views on two matters.
First, I would point
out that my observations related to the particular circumstances of that
occasion and ought not to be read out of context. I would wish most emphatically
to repudiate any idea that I would approve or that the law would countenance
what has been described as a shoot-to-kill policy on the part of the police.
Like every other
member of the public they have no right, in any circumstances, to use more force
than appears to be reasonably necessary having regard to all the circumstances
understood by them.
... I understand that
in some quarters certain further words of mine have been thought to mean that I
was contemplating that the police force might be regarded as entitled to mete
out summary justice by means of the bullet.
I do not believe that
on any fair analysis my words were capable of that interpretation. Indeed,
nothing was further from my mind, nor would I or any other judge contemplate for
a second that such a view was tenable.”
B. Concerning the
Stalker/Sampson investigation
21. In November and
December 1982 there had been two further fatal shooting incidents involving the
RUC in Armagh – the killing of Michael Tighe and serious wounding of Martin
McAuley on 24 November 1982, and the killing of Seamus Grew and Roddy Carroll on
12 December 1982. None of the deceased was armed.
22. On 11 April 1984
the DPP exercised his statutory powers under Article 6(3) of the Prosecution of
Offences (Northern Ireland) Order 1972 to request the Chief Constable of the RUC
to conduct further investigations into the three cases. The Government stated
that he did so as it appeared that, in certain statements of evidence, material
and important facts had been omitted and matters which were untrue and
misleading in material and important respects had been included. He also
requested that he be provided with full information about the circumstances in
which false and misleading evidence had been provided by any officer of the RUC
and an investigation into whether there was evidence to suggest that any person
was guilty of an offence of perverting the course of justice or any other
offence in connection with the investigation of the three shooting incidents.
23. On 24 May 1984
John Stalker, then Deputy Chief Constable of the Greater Manchester Police, was
appointed by the Chief Constable of the RUC to carry out the investigation,
which was to investigate the circumstances in which certain members of the RUC
had provided false or misleading evidence or purported evidence, and to
investigate the conduct of members of the RUC in connection with the inquiries
into the incidents.
24. In October 1984,
three months after the defendants were acquitted, they were interviewed by the
Stalker team, which included Detective Chief Superintendent Thorburn. Written
records were kept of these statements. B. also made a written statement.
According to his book John Stalker (see paragraph 31 below), on 26 June
1985, Mr Stalker wrote to the Chief Constable of the RUC, Sir John Hermon,
informing him of fresh evidence pointing to offences of unlawful killings by RUC
officers. On 18 September 1985 Mr Stalker sent his Interim Report to the RUC
[according to the RUC report on the Stalker book (see paragraph 33) this report
consisted of 3,609 pages, in twenty separate volumes, including one album of
maps and photographs] and, on 15 February 1986, Sir John Hermon sent the report
to the DPP for Northern Ireland. On 4 March 1986 the DPP instructed Sir John
Hermon to release Special Branch files to Mr Stalker, which documents had been
withheld on grounds of national security. The documents were handed over to Mr
Stalker on or about 30 April 1986.
25. On 29 May 1986
Mr Stalker was removed from the inquiry and replaced by Colin Sampson, Chief
Constable of West Yorkshire Police, who was also asked to investigate
allegations of impropriety against Mr Stalker concerning matters unrelated to
the present case.
26. On 6 August 1986
Mr Sampson completed his investigation into Mr Stalker and, on 22 August 1986,
Mr Stalker was reinstated by the Police Committee. He did not, however, return
to the inquiry.
27. On 26 November
1986 Mr Stalker’s deputy on the inquiry, John Thorburn, left the police and, on
13 March 1987, Mr Stalker himself also left.
28. Mr Sampson
delivered his report to Sir John Hermon and the DPP in three sections, on 22
October 1986, 23 March and 10 April 1997.
29. On 25 January
1988 Sir Patrick Mayhew, the then Attorney-General, made a statement in
Parliament in which he said, inter alia:
“In regard to the
shooting incidents ... the [DPP] had considered all the facts and information
ascertained and reported by Mr Stalker and Mr Sampson, and he has re-examined
the original RUC investigation files. He has concluded that the evidence does
not warrant any further prosecution in respect of the shootings which occurred
on 11 November 1982 and 12 December 1982 and which have already been the subject
of prosecutions. ...
The [DPP] has however
concluded that there is evidence of the commission of offences of perverting or
attempting or conspiring to pervert the course of justice or of obstructing a
constable in the execution of his duty, and that this evidence is sufficient to
require consideration of whether prosecutions are required in the public
interest and he has consulted me accordingly.
I have therefore taken
steps to acquaint myself with all the relevant circumstances, including matters
concerning the public interest and, in particular, considerations of national
security that might properly affect the decision whether or not to institute
proceedings.
I have informed the
Director fully with regard to my consultations as to the public interest, and in
the light of all the facts and information brought to his notice, the [DPP] has
concluded, with my full agreement, that it would not be proper to institute any
criminal proceedings. He has given directions accordingly.”
30. Eight officers
were, according to the Government, the subject of disciplinary proceedings, and
received admonitions and advice as to their future conduct.
31. In the book
John Stalker, published by Mr Stalker in 1988, the following descriptions of
his investigation into the three shooting incidents appeared:
(Concerning the
McKerr, Toman and Burns shooting)
“The Stalker inquiry
discovered that the three victims of the shooting had been under surveillance
for many hours by the police who planned to intercept them at a place different
from where the killings occurred. No serious attempt to attract the attention of
the driver was made, and no policeman was struck by the car. Immediately after
the incident the police officers drove from the scene with their weapons and
returned to their base for a debriefing by senior Special Branch Officers.
Officers from the Criminal Investigation Department (CID) were denied access for
many days to the police officers involved and to their car, clothes and weapons
for forensic examination. On the night of the killings, CID officers were given
incorrect information about where the shootings began and part of the forensic
examination was conducted in the wrong place. Many cartridge cases of rounds
fired were never found.”
“We believed ... that
at least one officer had been in an entirely different position from that which
he had claimed to be in when some fatal shots were fired. I also established
that the police pursuit took place in a different manner from that described.
But most damning of all, almost 21 months after the shooting we found fragments
of the bullet that undoubtedly killed the driver still embedded in the car. That
crucial evidence had lain undiscovered by the RUC and Forensic Science service
... My conclusion in relation to the missing cartridge cases was that as many as
twenty were deliberately removed from the scene. I could only presume that this
was in order to mislead the forensic scientists and to hide the true nature and
extent of the shooting.”
“I had to regard the
investigation of the matter as slipshod and in some aspects woefully inadequate.
I was left with two alternative conclusions, either that some RUC detectives
were amateur and inefficient at even the most basic of murder investigation
routines; or that they had been deliberately inept.”
(Concerning the
three incidents as a whole)
“Even though six
deaths had occurred over a five week period ... and involved in each case
officers from the same specialist squad, no co-ordinated investigation had ever
been attempted. It seemed that the investigating officers had never spoken to
each other. Worse still, despite the obvious political and public implications,
no senior officer had seen fit to draw the reports together.”
“We had expected a
particularly high level of enquiry in view of the nature of the deaths, but this
was shamefully absent. The files were little more than a collection of
statements, apparently prepared for a coroner’s enquiry. They bore no
resemblance to my idea of a murder prosecution file. Even on the most cursory of
readings I could see clearly why the prosecutions had failed.”
32. According to
The Times of 9 February 1988, Mr Stalker also stated:
“I never did find
evidence of a shoot-to-kill policy as such. There was no written instruction,
nothing pinned up on a noticeboard. But there was a clear understanding on the
part of the men whose job it was to pull the trigger that that was what was
expected of them.”
33. In 1990 the RUC
issued a response to the book by Mr Stalker. It stated in its introduction that
the book contained many inaccuracies and distortions and gave a misleading
impression. Their document aimed to highlight a selected number of
misrepresentations. It was stated, in contradiction to Mr Stalker’s assertions,
that it was wrong to allege that the three investigations were carried out under
different detectives as the same detective superintendent was in charge of two
of the investigations; that the investigation files were presented to the DPP in
the format approved by him; that it was already established in a police
statement of 13 November 1982 that no police officer had been struck by the car
driven by Gervaise McKerr; that it had been advisable,
for the safety of the three officers, that they leave the scene immediately;
that their weapons had been seized without delay by the scene of crimes
officers; that no incorrect information was given to the investigating officers
concerning where the shooting occurred, although uniformed officers had
mistakenly positioned the tape on the junction and it was repositioned
accurately shortly afterwards; it was accepted that all the cartridges were not
recovered but due to the torrential rain at the time some could have been washed
down the drains; the area had nonetheless been swept over for two days with
metal detectors.
Criticisms were also
made that Mr Stalker had gone outside his remit to reinvestigate the shooting
incidents as well as a terrorist incident on 27 October 1982 in which three
police officers had been killed and that his report, when submitted, lacked the
clarity and precision normally associated with criminal investigations.
34. The Government
have also submitted that on 23 June 1992 Mr Thorburn, on the occasion of his
withdrawal of a libel action against the RUC Chief Constable, made a statement
in which he took the opportunity to submit publicly that he was satisfied that
the RUC had not pursued a shoot- to-kill policy in 1982 and that the RUC Chief
Constable had not condoned or authorised any deliberate or reckless killings by
his officers. Other members of the Stalker/Sampson inquiry team also stated in
June 1990 that “the Greater Manchester officers wish to stress that the
Stalker/Sampson Enquiry found no evidence of a ‘Shoot to Kill policy’ ”.
C. Concerning the
inquest
35. An inquest into
the deaths was opened by the Armagh coroner, Mr Curran, on 4 June 1984 at the
conclusion of the criminal trial. On or about 22 August 1984 Mr Curran resigned.
The applicant alleged that this was due to irregularities in the RUC files
concerning the deaths. The inquest was due to be heard in September 1984 before
Mr Elliott but was adjourned on the application of Mrs Creaney’s legal
representatives. The coroner then waited until after the conclusion of the
Stalker/Sampson investigation before scheduling the inquest to reopen on 14
November 1988.
36. The coroner was
provided with all the witness statements, forensic evidence, maps and
photographs which were obtained as part of the RUC investigation and the
Stalker/Sampson investigations. Parts of some of the witness statements were
deleted in the public interest for reasons of national security.
37. On 27 October
1988 the coroner held a preliminary meeting, attended by the legal
representatives of the interested parties, including the relatives of the
deceased, at which he stated that he intended to admit in evidence the written
statement of Sergeant M. and officers B. and R.
38. On 9 November
1988 Tom King, the then Secretary of State for Northern Ireland, issued a Public
Interest Immunity Certificate (“PII Certificate”) which, the applicant alleged,
prevented the disclosure of a substantial amount of information that would
otherwise have been available to the inquest due to open five days later. The
certificate covered any information or documents which might reveal, inter
alia:
– details of RUC
counter-terrorist capabilities, including methods of operation, specialist
training and equipment;
– details of the
intelligence which gave rise to the belief that there was a conspiracy to murder
an off-duty member of the security forces and the methods by which such
intelligence was gleaned; and
– certain details of
surveillance mounted by the RUC as part of the operation during which
McKerr, Toman and Burns were killed.
39. On 14 November
1988 the inquest opened. The coroner admitted unsworn evidence by the three
officers M., B. and R., who had declined to appear to give evidence at the
inquest.
40. On 17 November
1988 an adjournment was granted at the request of Mrs Creaney’s solicitor who
took proceedings for judicial review to challenge the admission of the unsworn
statements. The application was refused on 22 November 1988 by Mr Justice
Carswell. On appeal, the Court of Appeal held on 20 December 1988 that the
Coroners’ Practice and Procedure Rules (which conferred on the coroner the
discretion to admit the statements) were ultra vires since M., B. and R.
were compellable witnesses. Leave to appeal to the House of Lords was granted to
the Crown on 19 April 1989. On 8 March 1990 the House of Lords overturned the
judgment, holding that the Coroners’ Rules of Practice and Procedure were not
ultra vires and that these officers could not be compelled to attend the
inquest.
41. The inquest
proceedings, due to recommence on 23 April 1990, were adjourned further while
Mrs Creaney commenced a second set of judicial review proceedings challenging
the admission of the statements of the three officers. Mr Justice Carswell on 11
May 1990 and the Court of Appeal on 27 June 1990 rejected the application as
raising no new issues.
42. On 20 July 1990
Mrs Creaney’s legal representatives wrote to the coroner requesting that the
inquest not be resumed pending an appeal in judicial review proceedings relating
to an inquest into the deaths of three other persons (the Devine case,
where relatives of the deceased had challenged the power of the coroner to admit
written statements from the soldiers who had shot the deceased). The request was
granted. Judgment was given by the Court of Appeal in that case on 6 December
1990 and by the House of Lords on 6 February 1992, upholding the power of
coroners to admit written statements.
43. On 5 May 1992 a
second inquest resumed under Coroner John Leckey. The coroner stated in his
address to the jury:
“The purpose of an
Inquest is the investigation in public of all the facts and circumstances
surrounding an unnatural death. It follows, therefore, that an inquest is
usually unnecessary when those facts have already been investigated and made
public in a criminal court on a prosecution for homicide. You may recall that in
1984 three police officers were prosecuted for the murder of one of the
deceased, Eugene Toman, but were acquitted. In the course of their trial there
was a very full examination of the facts surrounding the three deaths and had
there not been another factor to consider, I would have decided that an Inquest
was unnecessary. That factor, which makes the investigation of these deaths
wholly exceptional, is a subsequent investigation carried out by the Greater
Manchester Police: the so-called Stalker Inquiry. The statements they took have
been made available to me and the public has a proper interest in knowing
whether any further evidence came to light. For that reason and that reason
alone, I am holding Inquests.”
44. The inquest
continued until 29 May 1992, in public, before a jury, and involved the hearing
of about nineteen witnesses over thirteen days. Mrs Creaney was represented by a
barrister, who cross-examined the witnesses and made extensive legal
submissions. The RUC were also represented.
45. On 28 May 1992 a
witness, officer D., said that he had had recourse to the statement he had made
to the RUC on 13 November 1982, prior to giving evidence at the inquest. Counsel
for Mrs Creaney asked to see this statement but the coroner refused his request,
as the witness did not have it about his person and it was the property of the
RUC. On 29 May 1992, at the applicant’s request, the inquest was adjourned. The
same day, Mrs Creaney’s solicitor sought leave in the High Court for judicial
review of, inter alia, the coroner’s decision refusing access to witness
D.’s statement. Leave for judicial review was initially refused on 2 June 1992
but finally granted by the Court of Appeal on 8 June 1992.
46. On 21 December
1992 Judge Nicholson ruled that Mrs Creaney had no right to see the statement
and also declined to rule that she could have a list of the jurors, although he
strongly recommended that the names of the jurors be read out in open court on
resumption of the inquest. On 28 May 1993 the Court of Appeal overturned the
former decision, holding that counsel was entitled to see the witness statement
of 13 November 1982 and that the coroner could order production of the statement
from the RUC, and, if it was not produced, could issue a subpoena.
47. On 2 November
1992 the coroner wrote to Detective Chief Superintendent McIvor of the RUC,
recalling that, prior to the adjournment of the inquest, he had expressed his
view that four Greater Manchester Police witnesses (including John Thorburn, Mr
Stalker’s deputy on the inquiry) should be granted access to documents and
papers relating to their investigation as members of the Greater Manchester
Police Inquiry. Chief Superintendent McIvor replied that none of the police
officers mentioned had requested access and that he therefore presumed they had
been able to brief themselves on papers in their own possession.
48. On 16 November
1992 Mr Thorburn wrote to the Chief Constable of the Greater Manchester Police
requesting access to the statement file and forensic evidence relating to the
killing at Tullygally Road on 11 November 1982. By letter of 25 January 1993,
the coroner was informed that the Chief Constable of the RUC had advised the
Greater Manchester Police that Mr Thorburn should not be allowed access to the
documents requested. He was also informed that the documents were part of the
inquiry and were therefore the property of the RUC, to which all subsequent
requests should therefore be addressed.
49. Following a
meeting on 9 September 1993 with the representatives of the interested parties,
including Mrs Creaney, the coroner served a subpoena on the Chief Constable of
the RUC requiring him to attend with reports on the Stalker/Sampson
investigations.
50. On 21 December
1993 the legal adviser of the RUC wrote to the coroner stating that he had now
been informed by the Greater Manchester Police that they did not hold any papers
other than those held by the RUC, which, apart from the Stalker and Sampson
reports, the coroner already had in his possession. He also raised the fact that
the documents were likely to be covered by public interest immunity. By letter
of 4 January 1994 the coroner referred to a conversation of 21 December 1993
with the legal adviser of the RUC, wishing to formally put on record his
surprise at hearing that documents in the possession of the Greater Manchester
Police had been destroyed. The RUC legal adviser replied on 12 January 1994,
stating that he had never said that documents had been destroyed. On 13 January
1994 the coroner requested the legal adviser to confirm that all documents
referred to in the schedule to the subpoena were in existence and to identify
their location.
51. By letter dated
17 February 1994 the RUC legal adviser informed the coroner that, contrary to
information previously given to him, a number of filing cabinets containing
documents from the inquiry had been located with the Greater Manchester Police.
These had been handed over to the RUC and were in his view covered by the PII
Certificate.
52. Meanwhile, on 31
January 1994 the inquest was closed and the jury discharged. The inquest was
reopened on 22 March 1994. In reopening the inquest, the coroner informed Mrs
Creaney’s solicitors by letter dated 21 February 1994 that:
“Re: inquests into the
deaths of –
(1) James Gervaise
McKerr, Eugene Toman and John Frederick Burns
... A criminal trial
arose out of each of these incidents and normally where that occurs an Inquest
is unnecessary as all the facts are likely to have been fully investigated in
public at the trial.
However, as you are
aware, the circumstances surrounding these deaths was the subject of an
investigation carried out by ... Mr John Stalker ... and Mr Colin Sampson ...
between May 1984 and April 1987. Their reports were subsequently submitted to
the Chief Constable of the Royal Ulster Constabulary. I am of the opinion that
the public has a proper interest in knowing whether any further evidence came to
light subject to this evidence being within the proper scope of an Inquest. Were
it not for this unique aspect of the investigation into the deaths I would not
hold Inquests but would proceed to register the deaths.
The purpose of
formally opening these Inquests is to determine whether it will be possible for
me to achieve my aim. One of the witnesses whom it is my present intention to
call is ex-Detective Chief Superintendent John Thorburn ... who played a leading
role in the ... investigation. He would be in a position to give material
evidence only if he had access in advance of the Inquest to certain working
papers and other documents which are presently in the custody of the Chief
Constable. After a lapse of seven years it is important that he has the
opportunity to refresh his memory by carefully re-examining these so that the
evidence that he gives will be as accurate as possible ...”
53. The coroner
issued a fresh subpoena on 24 February 1994 requiring Sir Hugh Annesley, Chief
Constable of the RUC, to attend before him in connection with the inquest and to
produce:
(i) a copy of the
Stalker Interim Report (including statement files, exhibits and forensic file);
(ii) a copy of the
draft and final Sampson Report (including documents and statement files);
(iii) a copy of the
draft and final Stalker Report (including statements, exhibits, and forensic
files);
(iv) thirteen files
of action sheets;
(v) computer disks;
(vi) photographs and
maps;
(vii) press
cuttings, a file and videos of TV programmes;
(viii) interview
notes of RUC officers;
(ix) trial
transcripts;
(x) a book of
handwritten notes of trials;
(xi) three interview
indexes;
(xii) original RUC
documents (ref. Ballynerry Road);
(xiii) fifteen
document files designated B105, 119-129, 134, 137-146, 149 and 153; and
(xiv) presentation
documents.
54. On 20 April 1994
the Chief Constable of the RUC issued a summons to have the subpoena set aside
on the grounds that he had no personal knowledge of the facts at issue at the
inquest and should not therefore be required to give evidence; that the
documents sought under the subpoena should not be disclosed as they consisted of
documents which ought not to be disclosed in the public interest and to which a
claim of public interest immunity properly attached; and that in the
circumstances the issue of the subpoena was oppressive, vexatious and an abuse
of the process of the court.
55. On 4 May 1994
the coroner served an affidavit stating that he did not require the Chief
Constable to give any evidence in respect of his personal knowledge but required
him to produce the Stalker and Sampson reports that were in his custody. He
stated that he required the production of these reports for the sole purpose of
enabling ex-Detective Chief Superintendent John Thorburn, who played a leading
role in the investigations connected with, and in the preparation of, the
reports, to refresh his memory, so that the evidence he gave at the inquest
would be as accurate as possible. He further stated the following:
“8. I am of the
opinion that the public has a proper interest in knowing whether any further
evidence touching the causes of the material deaths came to light as a result of
the said investigations, subject, of course, to that evidence being within the
proper scope of the Inquests.
9. Were it not for
this unique aspect of the investigation into the deaths (being the
investigations which led to the production of the said Reports), I would not
hold Inquests, but would proceed to register the material deaths.
10. I have issued the
material Writs of Subpoena only because the Royal Ulster Constabulary has
refused Mr Thorburn access to the original investigation papers.
11. Accordingly, if
the material Writs of Subpoena are set aside, so that the said Reports are not
available for the purposes of the Inquests, I will consider that there will be
no useful purposes to be served in proceeding with the Inquests, and I will
close them, and proceed to register the material deaths.”
56. On 5 May 1994
Sir Patrick Mayhew (then Secretary of State for Northern Ireland) issued a
further PII Certificate stating that the disclosure of the Stalker and Sampson
reports would cause serious damage to the public interest and that he considered
it his duty to issue the Certificate in order to protect the public interest, in
summary constituting the following:
“(a) the need to
protect the operational efficiency of the special units of the Royal Ulster
Constabulary and the Armed Forces and the Security Service;
(b) the need to
protect the integrity of intelligence operations;
(c) the need to
protect the future usefulness of Royal Ulster Constabulary, Armed Forces and
Security Service personnel;
(d) the need to
protect the lives and safety of Royal Ulster Constabulary, Armed Forces and
Security Service personnel and their families, and the lives and safety of
persons, and their families, who have provided or may provide information and
intelligence to the security forces.”
57. The Secretary of
State emphasised the need, first, to protect the integrity of the process of
criminal investigations and the making of decisions as to prosecutions and,
secondly, the need to preserve the efficacy of the Crown’s efforts to counter
terrorism and the safety from terrorist attack of persons involved in those
efforts. As regards the work of special units of the RUC, he stated that these
units and personnel carried out security, intelligence and surveillance work.
The work of all these units required secrecy if it was to be effective. The
disclosure of, or evidence about, the identity of members of the special units
of the Royal Ulster Constabulary, Armed Forces and the Security Service could
substantially impair their capability to perform the tasks assigned to them and
could put their lives at risk.
58. On 16 May 1994
the Chief Constable swore a further affidavit in which he stated that he had
been informed that copies of all witness statements, forensic evidence
photographs and maps from the first two RUC investigations and the Stalker and
Sampson inquiries had been provided to the coroner subject to certain deletions
from various statements and transcripts. He stated that the coroner was
therefore in possession of all the documentary evidence from the three
investigations and should be in a position to identify any further evidence
which came to light during the Stalker and Sampson inquiries. On 20 May 1994 the
Chief Constable applied to the High Court for the writ of subpoena to be set
aside.
59. On 25 May 1994
the coroner swore a further affidavit stating that he was satisfied that
relevant new material germane to the inquests had been found by the police
during the Stalker and Sampson inquiries and that he had spoken to Mr Thorburn
(Mr Stalker’s deputy) and Mr Shaw (Mr Sampson’s deputy), who informed him that
they required access to the documents in issue in order to identify the headings
of the new material and give accurate evidence thereon.
60. On 11 July 1994
Judge Nicholson set aside the subpoenas on the grounds that they were not
necessary to the proper purpose of the inquest and that the materials in
question should not be disclosed in view of the PII Certificate. He stated,
inter alia:
“... [The Coroner]
stated that his enquiries satisfied him that there was relevant new material in
the Reports. The source of this information must have been Mr Thorburn or Mr
Shaw ...
It is not disputed by
counsel for the Coroner that all witness statements have been given to the
Coroner. There remain recommendations, expressions of opinion, comments,
criticisms and the like. I can think of nothing else.
This leads me to the
conclusion that the Coroner is seeking material about the ‘broad circumstances’
in which the killings took place in order to deal with rumours and suspicions
that there was a ‘shoot to kill’ policy. ...
The recent decision of
the Court of Appeal in Northern Ireland indicates that he is not entitled to do
so. There is nothing to prevent him from calling Mr Thorburn or Mr Shaw if they
can give relevant evidence touching the deaths of the deceased. But in my
opinion it is not proper for Mr Thorburn to give an ‘overview’ to the jury. ...
The Reports are not
relevant to the Coroner’s inquiry and the overriding public interest in the
integrity of the criminal process makes it ‘oppressive and an abuse of the
process of the Court’ to permit production of the Reports for the purpose sought
by the Coroner. The writs of subpoena should be set aside for these reasons.
This is not a
reflection or criticism of the Coroner. I am satisfied that he is genuinely
concerned to deal openly with the fears and suspicions that there was a ‘shoot
to kill’ policy. But the Coroner’s court is not the proper forum in which this
kind of issue can properly be dealt with.
The third question
with which I propose to deal with briefly is the claim to public interest
immunity in the interests of national security ...
I accept that there is
evidence that national security would be imperilled by the production of these
two Reports. Were Mr Thorburn to use them to refresh his memory, other parties
to the inquest would be entitled to call for them. ...”
61. On 8 September
1994 the coroner issued a ruling abandoning the inquest into Gervaise
McKerr’s death, stating:
“I am satisfied that
my aim in deciding to hold Inquests for the reasons I expressed to the jury when
I opened the Inquests into the deaths of Toman, Burns and
McKerr is no longer achievable.”
D. Concerning civil
proceedings
62. On 19 August
1991 Mrs Creaney issued a writ of summons against the Chief Constable of the RUC
in the High Court, claiming damages under the Law Reform (Miscellaneous
Provisions) Act (Northern Ireland) and the Fatal Accidents (Northern Ireland)
Act 1977 for personal injuries, loss and damage sustained by her husband, his
estate and dependants by reason of the assault, battery, conspiracy, negligence,
nuisance and trespass to the person by the police officers involved in the
security operation on 11 November 1982.
63. No further steps
to proceed with these claims were taken by Mrs Creaney or, since her death, by
the applicant.
II. RELEVANT DOMESTIC
LAW AND PRACTICE
A. Use of lethal
force
64. Section 3 of the
Criminal Law Act (Northern Ireland) 1967 provides, inter alia:
“1. A person may use
such force as is reasonable in the circumstances in the prevention of crime, or
in effecting the arrest or assisting in the lawful arrest of offenders or
suspected offenders or persons unlawfully at large.”
Self-defence or the
defence of others is contained within the concept of the prevention of crime
(see, for example, Smith and Hogan on criminal law).
B. Inquests
1. Statutory
provisions and rules
65. The conduct of
inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland)
1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963.
These provide the framework for a procedure within which deaths by violence or
in suspicious circumstances are notified to the coroner, who then has the power
to hold an inquest, with or without a jury, for the purpose of ascertaining,
with the assistance as appropriate of the evidence of witnesses and reports,
inter alia, of post- mortem and forensic examinations, who the deceased was
and how, when and where he died.
66. According to the
Coroners Act, every medical practitioner, registrar of deaths or funeral
undertaker who has reason to believe a person died directly or indirectly by
violence is under an obligation to inform the coroner (section 7). Every medical
practitioner who performs a post-mortem examination has to notify the coroner of
the result in writing (section 29). Whenever a dead body is found, or an
unexplained death or death in suspicious circumstances occurs, the police of the
district are required to give notice to the coroner (section 8).
67. Rules 12 and 13
of the Coroners Rules give the coroner power to adjourn an inquest where a
person may be or has been charged with murder or other specified criminal
offences in relation to the deceased.
68. Where the
coroner decides to hold an inquest with a jury, persons are called from the Jury
List, compiled by random computer selection from the electoral register for the
district on the same basis as in criminal trials.
69. The matters in
issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:
“15. The proceedings
and evidence at an inquest shall be directed solely to ascertaining the
following matters, namely: –
(a) who the deceased
was;
(b) how, when and
where the deceased came by his death;
(c) the particulars
for the time being required by the Births and Deaths Registration (Northern
Ireland) Order 1976 to be registered concerning his death.
16. Neither the
coroner nor the jury shall express any opinion on questions of criminal or civil
liability or on any matters other than those referred to in the last foregoing
Rule.”
70. The forms of
verdict used in Northern Ireland accord with this recommendation, recording the
name and other particulars of the deceased, a statement of the cause of death
(for example, bullet wounds) and findings as to when and where the deceased met
his death. In England and Wales, the form of verdict appended to the English
Coroners Rules contains a section marked “Conclusions of the jury/coroner as to
the death” in which conclusions such as “lawfully killed” or “killed unlawfully”
are inserted. These findings involve expressing an opinion on criminal liability
in that they involve a finding as to whether the death resulted from a criminal
act, but no finding is made that any identified person was criminally liable.
The jury in England and Wales may also append recommendations to their verdict.
71. However, in
Northern Ireland, the coroner is under a duty (section 6(2) of the Prosecution
of Offences (Northern Ireland) Order 1972) to furnish a written report to the
DPP where the circumstances of any death appear to disclose that a criminal
offence may have been committed.
72. Until recently,
legal aid was not available for inquests as they did not involve the
determination of civil liabilities or criminal charges. Legislation which would
have provided for legal aid at the hearing of inquests (the Legal Aid, Advice
and Assistance (Northern Ireland) Order 1981, Schedule 1, paragraph 5) has not
been brought into force. However, on 25 July 2000 the Lord Chancellor announced
the establishment of an extra-statutory ex gratia scheme to make public
funding available for representation for proceedings before coroners in
exceptional inquests in Northern Ireland. In March 2001 he published for
consultation the criteria to be used in deciding whether applications for
representation at inquests should receive public funding. These included,
inter alia, consideration of financial eligibility, whether an
effective investigation by the State was needed and whether the inquest was the
only way to conduct it, whether the applicant required representation to be able
to participate effectively in the inquest and whether the applicant had a
sufficiently close relationship with the deceased.
73. The coroner
enjoys the power to summon witnesses whose presence he deems necessary at the
inquest (section 17 of the Coroners Act) and he may allow any interested person
to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a
witness is entitled to rely on the privilege against self-incrimination. In
Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that
a person suspected of causing death may not be compelled to give evidence at the
inquest.
74. In relation to
both documentary evidence and the oral evidence of witnesses, inquests, like
criminal trials, are subject to the law of public interest immunity, which
recognises and gives effect to the public interest, such as national security,
in the non-disclosure of certain information or certain documents or classes of
document. A claim of public interest immunity must be supported by a
certificate.
2. The scope of
inquests
75. Rules 15 and 16
(see above) follow from the recommendation of the Brodrick Committee on Death
Certification and Coroners:
“... the function of
an inquest should be simply to seek out and record as many of the facts
concerning the death as the public interest requires, without deducing from
those facts any determination of blame ... In many cases, perhaps the majority,
the facts themselves will demonstrate quite clearly whether anyone bears any
responsibility for the death; there is a difference between a form of proceeding
which affords to others the opportunity to judge an issue and one which appears
to judge the issue itself.”
76. Domestic courts
have made, inter alia, the following comments:
“... It is noteworthy
that the task is not to ascertain how the deceased died, which might raise
general and far-reaching issues, but ‘how ... the deceased came by his death’, a
far more limited question directed to the means by which the deceased came by
his death.
... [previous
judgments] make it clear that when the Brodrick Committee stated that one of the
purposes of an inquest is ‘To allay rumours or suspicions’ this purpose should
be confined to allaying rumours and suspicions of how the deceased came by his
death and not to allaying rumours or suspicions about the broad circumstances in
which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal,
R. v. the Coroner for North Humberside and Scunthorpe, ex parte Roy Jamieson,
April 1994, unreported)
“The cases establish
that although the word ‘how’ is to be widely interpreted, it means ‘by what
means’ rather than in what broad circumstances ... In short, the inquiry must
focus on matters directly causative of death and must, indeed, be confined to
those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for
Western District of East Sussex, ex parte Homberg and Others (1994) 158
Justice of the Peace Reports 357)
“... it should not be
forgotten that an inquest is a fact finding exercise and not a method of
apportioning guilt. The procedure and rules of evidence which are suitable for
one are unsuitable for the other. In an inquest it should never be forgotten
that there are no parties, no indictment, there is no prosecution, there is no
defence, there is no trial, simply an attempt to establish the facts. It is an
inquisitorial process, a process of investigation quite unlike a trial ...
It is well recognised
that a purpose of an inquest is that rumour may be allayed. But that does not
mean it is the duty of the Coroner to investigate at an inquest every rumour or
allegation that may be brought to his attention. It is ... his duty to discharge
his statutory role – the scope of his enquiry must not be allowed to drift into
the uncharted seas of rumour and allegation. He will proceed safely and properly
if he investigates the facts which it appears are relevant to the
statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London
Coroner, ex parte Thompson (1982) 126 Solicitors’ Journal 625)
3. Disclosure of
documents
77. There was no
requirement prior to 1999 for the families at inquests to receive copies of the
written statements or documents submitted to the coroner during the inquest.
Coroners generally adopted the practice of disclosing the statements or
documents during the inquest proceedings, as the relevant witness came forward
to give evidence.
78. Following the
recommendation of the Stephen Lawrence Inquiry, Home Office Circular no. 20/99
(concerning deaths in custody or deaths resulting from the actions of a police
officer in purported execution of his duty) advised chief constables of police
forces in England and Wales to make arrangements in such cases for the
pre-inquest disclosure of documentary evidence to interested parties. This was
to “help provide reassurance to the family of the deceased and other interested
persons that a full and open police investigation has been conducted, and that
they and their legal representatives will not be disadvantaged at the inquest”.
It was recommended that such disclosure should take place twenty-eight days
before the inquest.
79. Paragraph 7 of
the circular stated:
“The courts have
established that statements taken by the police and other documentary material
produced by the police during the investigation of a death in police custody are
the property of the force commissioning the investigation. The Coroner has no
power to order the pre-inquest disclosure of such material ... Disclosure will
therefore be on a voluntary basis.”
Paragraph 9 listed
some kinds of material which require particular consideration before being
disclosed, for example:
– where disclosure of
documents might have a prejudicial effect on possible subsequent proceedings
(criminal, civil or disciplinary);
– where the material
concerns sensitive or personal information about the deceased or unsubstantiated
allegations which might cause distress to the family; and
– personal information
about third parties not material to the inquest.
Paragraph 11
envisaged that there would be non-disclosure of the investigating officer’s
report although it might be possible to disclose it in those cases which the
Chief Constable considered appropriate.
C. Police
complaints procedures
80. The police
complaints procedure was governed at the relevant time by the Police (Northern
Ireland) Order 1987 (“the 1987 Order”). This replaced the Police Complaints
Board, which had been set up in 1977 by the Independent Commission for Police
Complaints (ICPC). Since 1 October 2000, the ICPC has been replaced by the
Police Ombudsman for Northern Ireland appointed under the Police (Northern
Ireland) Act 1998.
81. The ICPC was an
independent body, consisting of a chairman, two deputy chairmen and at least
four other members. Where a complaint against the police was being investigated
by a police officer or where the Chief Constable or Secretary of State
considered that a criminal offence might have been committed by a police
officer, the case was referred to the ICPC.
82. Under Article
9(1)(a) of the 1987 Order, the ICPC was required to supervise the investigation
of any complaint alleging that the conduct of a RUC officer had resulted in
death or serious injury. Its approval was required for the appointment of the
police officer to conduct the investigation and it could require the
investigating officer to be replaced (Article 9(5)(b)). For a supervised
investigation, a report by the investigating officer was submitted to the ICPC
at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987
Order, the ICPC issued a statement as to whether the investigation had been
conducted to its satisfaction and, if not, specifying any respect in which it
had not been so conducted.
83. Under Article 10
of the 1987 Order, the Chief Constable was required to determine whether the
report indicated that a criminal offence had been committed by a member of the
police force. If he so decided and considered that the officer ought to be
charged, he was required to send a copy of the report to the DPP. If the DPP
decided not to prefer criminal charges, the Chief Constable was required to send
a memorandum to the ICPC indicating whether he intended to bring disciplinary
proceedings against the officer (Article 10(5)), save where disciplinary
proceedings had been brought and the police officer had admitted the charges
(Article 11(1)). Where the Chief Constable considered that a criminal offence
had been committed but that the offence was not such that the police officer
should be charged or where he considered that no criminal offence had been
committed, he was required to send a memorandum indicating whether he intended
to bring disciplinary charges and, if not, his reasons for not proposing to do
so (Article 11(6) and (7)).
84. If the ICPC
considered that a police officer subject to investigation ought to be charged
with a criminal offence, it could direct the Chief Constable to send the DPP a
copy of the report on that investigation (Article 12(2)). It could also
recommend or direct the Chief Constable to prefer such disciplinary charges as
the ICPC specified (Article 13(1) and (3)).
D. The Director of
Public Prosecutions
85. The Director of
Public Prosecutions (DPP), appointed pursuant to the Prosecution of Offences
(Northern Ireland) Order 1972 (“the 1972 Order”), is an independent officer with
at least ten years’ experience of the practice of law in Northern Ireland who is
appointed by the Attorney-General and who holds office until retirement, subject
only to dismissal for misconduct. His duties under Article 5 of the 1972 Order
are, inter alia:
“(a) to consider, or
cause to be considered, with a view to his initiating or continuing in Northern
Ireland any criminal proceedings or the bringing of any appeal or other
proceedings in or in connection with any criminal cause or matter in Northern
Ireland, any facts or information brought to his notice, whether by the Chief
Constable acting in pursuance of Article 6(3) of this Order or by the Attorney
General or by any other authority or person;
(b) to examine or
cause to be examined all documents that are required under Article 6 of this
Order to be transmitted or furnished to him and where it appears to him to be
necessary or appropriate to do so to cause any matter arising thereon to be
further investigated;
(c) where he thinks
proper to initiate, undertake and carry on, on behalf of the Crown, proceedings
for indictable offences and for such summary offences or classes of summary
offences as he considers should be dealt with by him.”
86. Article 6 of the
1972 Order requires, inter alia, coroners and the Chief Constable of the
RUC to provide information to the DPP as follows:
“(2) Where the
circumstances of any death investigated or being investigated by a coroner
appear to him to disclose that a criminal offence may have been committed he
shall as soon as practicable furnish to the [DPP] a written report of those
circumstances.
(3) It shall be the
duty of the Chief Constable, from time to time, to furnish to the [DPP] facts
and information with respect to –
(a) indictable
offences [such as murder] alleged to have been committed against the law of
Northern Ireland; ...
and at the request of
the [DPP], to ascertain and furnish to the [DPP] information regarding any
matter which may appear to the [DPP] to require investigation on the ground that
it may involve an offence against the law of Northern Ireland or information
which may appear to the [DPP] to be necessary for the discharge of his functions
under this Order.”
87. According to the
Government’s observations submitted on 18 June 1998, it had been the practice of
successive DPPs to refrain from giving reasons for decisions not to institute or
proceed with criminal prosecutions other than in the most general terms. This
practice was based upon the consideration that:
(i) if reasons were
given in one or more cases, they would be required to be given in all.
Otherwise, erroneous conclusions might be drawn in relation to those cases where
reasons were refused, involving either unjust implications regarding the guilt
of some individuals or suspicions of malpractice;
(ii) the reason not
to prosecute might often be the unavailability of a particular item of evidence
essential to establish the case (for example, sudden death or flight of a
witness or intimidation). To indicate such a factor as the sole reason for not
prosecuting might lead to assumptions of guilt in the public estimation;
(iii) the
publication of the reasons might cause pain or damage to persons other than the
suspect (for example, the assessment of the credibility or mental condition of
the victim or other witnesses);
(iv) in a
substantial category of cases, decisions not to prosecute were based on the
DPP’s assessment of the public interest. Where the sole reason not to prosecute
was the age, mental or physical health of the suspect, publication would not be
appropriate and could lead to unjust implications;
(v) there might be
considerations of national security which affected the safety of individuals
(for example, where no prosecution could safely or fairly be brought without
disclosing information which would be of assistance to terrorist organisations,
would impair the effectiveness of the counter-terrorist operations of the
security forces or endanger the lives of such personnel and their families or
informants).
88. Decisions of the
DPP not to prosecute have been subject to applications for judicial review in
the High Court.
In R. v. DPP,
ex parte C (1995) 1 Criminal Appeal Reports 141, Lord Justice Kennedy held,
concerning a decision of the DPP not to prosecute in an alleged case of buggery:
“From all of those
decisions it seems to me that in the context of the present case this court can
be persuaded to act if and only if it is demonstrated to us that the Director of
Public Prosecutions acting through the Crown Prosecution Service arrived at the
decision not to prosecute:
(1) because of some
unlawful policy (such as the hypothetical decision in Blackburn not to
prosecute where the value of goods stolen was below £100);
(2) because the
Director of Public Prosecutions failed to act in accordance with his own settled
policy as set out in the code; or
(3) because the
decision was perverse. It was a decision at which no reasonable prosecutor could
have arrived.”
89. In the case of
R. v. the DPP and Others, ex parte Timothy Jones, the Divisional
Court on 22 March 2000 quashed a decision not to prosecute for alleged gross
negligence causing a death in dock unloading on the basis that the reasons given
by the DPP – that the evidence was not sufficient to provide a realistic
prospect of satisfying a jury – required further explanation.
90. R. v. DPP,
ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional
Court of 17 May 2000), concerned the DPP’s decision not to prosecute any prison
officer for manslaughter in respect of the death of a prisoner, although the
inquest jury had reached a verdict of unlawful death – there was evidence that
prison officers had used a neck lock which was forbidden and dangerous. The DPP
reviewing the case still concluded that the Crown would be unable to establish
manslaughter from gross negligence. The Lord Chief Justice noted:
“Authority makes clear
that a decision by the Director not to prosecute is susceptible to judicial
review: see, for example, R. v. Director of Public Prosecutions, ex
parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear,
the power of review is one to be sparingly exercised. The reasons for this are
clear. The primary decision to prosecute or not to prosecute is entrusted by
Parliament to the Director as head of an independent, professional prosecuting
service, answerable to the Attorney General in his role as guardian of the
public interest, and to no-one else. It makes no difference that in practice the
decision will ordinarily be taken by a senior member of the CPS, as it was here,
and not by the Director personally. In any borderline case the decision may be
one of acute difficulty, since while a defendant whom a jury would be likely to
convict should properly be brought to justice and tried, a defendant whom a jury
would be likely to acquit should not be subjected to the trauma inherent in a
criminal trial. If, in a case such as the present, the Director’s provisional
decision is not to prosecute, that decision will be subject to review by Senior
Treasury Counsel who will exercise an independent professional judgment. The
Director and his officials (and Senior Treasury Counsel when consulted) will
bring to their task of deciding whether to prosecute an experience and expertise
which most courts called upon to review their decisions could not match. In most
cases the decision will turn not on an analysis of the relevant legal principles
but on the exercise of an informed judgment of how a case against a particular
defendant, if brought, would be likely to fare in the context of a criminal
trial before (in a serious case such as this) a jury. This exercise of judgment
involves an assessment of the strength, by the end of the trial, of the evidence
against the defendant and of the likely defences. It will often be impossible to
stigmatise a judgment on such matters as wrong even if one disagrees with it. So
the courts will not easily find that a decision not to prosecute is bad in law,
on which basis alone the court is entitled to interfere. At the same time, the
standard of review should not be set too high, since judicial review is the only
means by which the citizen can seek redress against a decision not to prosecute
and if the test were too exacting an effective remedy would be denied.”
As regards whether
the DPP had a duty to give reasons, the Lord Chief Justice said:
“It is not contended
that the Director is subject to an obligation to give reasons in every case in
which he decides not to prosecute. Even in the small and very narrowly defined
cases which meet Mr Blake’s conditions set out above, we do not understand
domestic law or the jurisprudence of the European Court of Human Rights to
impose an absolute and unqualified obligation to give reasons for a decision not
to prosecute. But the right to life is the most fundamental of all human
rights. It is put at the forefront of the Convention. The power to derogate from
it is very limited. The death of a person in the custody of the State must
always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the
Coroner’s Act 1988, and if the death resulted from violence inflicted by agents
of the State that concern must be profound. The holding of an inquest in public
by an independent judicial official, the coroner, in which interested parties
are able to participate must in our view be regarded as a full and effective
inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159
to 164). Where such an inquest following a proper direction to the jury
culminates in a lawful verdict of unlawful killing implicating a person who,
although not named in the verdict, is clearly identified, who is living and
whose whereabouts are known, the ordinary expectation would naturally be that a
prosecution would follow. In the absence of compelling grounds for not giving
reasons, we would expect the Director to give reasons in such a case: to meet
the reasonable expectation of interested parties that either a prosecution would
follow or a reasonable explanation for not prosecuting be given, to vindicate
the Director’s decision by showing that solid grounds exist for what might
otherwise appear to be a surprising or even inexplicable decision and to meet
the European Court’s expectation that if a prosecution is not to follow a
plausible explanation will be given. We would be very surprised if such a
general practice were not welcome to Members of Parliament whose constituents
have died in such circumstances. We readily accept that such reasons would have
to be drawn with care and skill so as to respect third party and public
interests and avoid undue prejudice to those who would have no opportunity to
defend themselves. We also accept that time and skill would be needed to prepare
a summary which was reasonably brief but did not distort the true basis of the
decision. But the number of cases which meet Mr Blake’s conditions is very small
(we were told that since 1981, including deaths in police custody, there have
been seven such cases), and the time and expense involved could scarcely be
greater than that involved in resisting an application for judicial review. In
any event it would seem to be wrong in principle to require the citizen to make
a complaint of unlawfulness against the Director in order to obtain a response
which good administrative practice would in the ordinary course require.”
On this basis, the
court reviewed whether the reasons given by the DPP in that case were in
accordance with the Code for Crown Prosecutors and capable of supporting a
decision not to prosecute. It found that the decision had failed to take
relevant matters into account and that this vitiated the decision not to
prosecute. The decision was quashed and the DPP was required to reconsider his
decision whether or not to prosecute.
91. On 7 June 2000
in the case of an application by David Adams for judicial review, the High Court
in Northern Ireland considered the applicant’s claim that the DPP had failed to
give adequate and intelligible reasons for his decision not to prosecute any
police officer concerned in the arrest during which he had suffered serious
injuries and for which in civil proceedings he had obtained an award of damages
against the police. It noted that there was no statutory obligation on the DPP
under the 1972 Order to give reasons and considered that no duty to give reasons
could be implied. The fact that the DPP in England and Wales had in a number of
cases furnished detailed reasons, whether from increasing concern for
transparency or in the interests of the victim’s families, was a matter for his
discretion. It concluded on the basis of authorities that only in exceptional
cases such as the Manning case (see paragraph 90 above) would the DPP be
required to furnish reasons to a victim for failing to prosecute and that review
should be limited to where the principles identified by Lord Justice Kennedy
(see paragraph 88 above) were infringed. Notwithstanding the findings in the
civil case, it was not persuaded that the DPP had acted in such an aberrant,
inexplicable or irrational manner that the case cried out for reasons to be
furnished as to why he had so acted.
III. RELEVANT
INTERNATIONAL LAW AND PRACTICE
A. The United
Nations
92. The United
Nations Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by
the 8th United Nations Congress on the Prevention of Crime and the Treatment of
Offenders.
93. Paragraph 9 of
the UN Force and Firearms Principles provides, inter alia, that the
“intentional lethal use of firearms may only be made when strictly unavoidable
in order to protect life”.
94. Other relevant
provisions read as follows:
Paragraph 10
“... law enforcement
officials shall identify themselves as such and shall give a clear warning of
their intent to use firearms, with sufficient time for the warnings to be
observed, unless to do so would unduly place the law enforcement officials at
risk or would create a risk of death or serious harm to other persons, or would
be clearly inappropriate or pointless in the circumstances of the incident.”
Paragraph 22
“... Governments and
law enforcement agencies shall ensure that an effective review process is
available and that independent administrative or prosecutorial authorities are
in a position to exercise jurisdiction in appropriate circumstances. In cases of
death and serious injury or other grave consequences, a detailed report shall be
sent promptly to the competent authorities responsible for administrative review
and judicial control.”
Paragraph 23
“Persons affected by
the use of force and firearms or their legal representatives shall have access
to an independent process, including a judicial process. In the event of the
death of such persons, this provision shall apply to their dependants
accordingly.”
95. Paragraph 9 of
the United Nations Principles on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions (UN Principles on Extra-legal
Executions), adopted on 24 May 1989 by the Economic and Social Council in
Resolution 1989/65, provides, inter alia:
“There shall be a
thorough, prompt and impartial investigation of all suspected cases of
extra-legal, arbitrary and summary executions, including cases where complaints
by relatives or other reliable reports suggest unnatural death in the above
circumstances. ...”
96. Paragraphs 10 to
17 of the UN Principles on Extra-legal Executions contain a series of detailed
requirements that should be observed by investigative procedures into such
deaths.
Paragraph 10 states,
inter alia:
“The investigative
authority shall have the power to obtain all the information necessary to the
inquiry. Those persons conducting the inquiry ... shall also have the authority
to oblige officials allegedly involved in any such executions to appear and
testify. ...”
Paragraph 11
specifies:
“In cases in which the
established investigative procedures are inadequate because of a lack of
expertise or impartiality, because of the importance of the matter or because of
the apparent existence of a pattern of abuse, and in cases where there are
complaints from the family of the victim about these inadequacies or other
substantial reasons, Governments shall pursue investigations through an
independent commission of inquiry or similar procedure. Members of such a
commission shall be chosen for their recognised impartiality, competence and
independence as individuals. In particular, they shall be independent of any
institution, agency or person that may be the subject of the inquiry. The
commission shall have the authority to obtain all information necessary to the
inquiry and shall conduct the inquiry as provided in these Principles.”
Paragraph 16
provides, inter alia:
“Families of the
deceased and their legal representatives shall be informed of, and have access
to, any hearing as well as all information relevant to the investigation and
shall be entitled to present other evidence. ...”
Paragraph 17
provides, inter alia:
“A written report
shall be made within a reasonable time on the methods and findings of such
investigations. The report shall be made public immediately and shall include
the scope of the inquiry, procedures, methods used to evaluate evidence as well
as conclusions and recommendations based on findings of fact and on applicable
law. ...”
97. The “Minnesota
Protocol” (model protocol for a legal investigation of extra-legal, arbitrary
and summary executions, contained in the United Nations Manual on the Effective
Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions)
provides, inter alia, in Section B on the “Purposes of an
inquiry”:
“As set out in
paragraph 9 of the Principles, the broad purpose of an inquiry is to discover
the truth about the events leading to the suspicious death of a victim. To
fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:
(a) to identify the
victim;
(b) to recover and
preserve evidentiary material related to the death to aid in any potential
prosecution of those responsible;
(c) to identify
possible witnesses and obtain statements from them concerning the death;
(d) to determine the
cause, manner, location and time of death, as well as any pattern or practice
that may have brought about the death;
(e) to distinguish
between natural death, accidental death, suicide and homicide;
(f) to identify and
apprehend the person(s) involved in the death;
(g) to bring the
suspected perpetrator(s) before a competent court established by law.”
In Section D, it is
stated that “in cases where government involvement is suspected, an objective
and impartial investigation may not be possible unless a special commission of
inquiry is established”.
B. The European
Committee for the Prevention of Torture
98. In the report on
its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1997,
published on 13 January 2000, the European Committee for the Prevention of
Torture (CPT) reviewed the system of preferring criminal and disciplinary
charges against police officers accused of ill-treatment. It commented, inter
alia, on the statistically few criminal prosecutions and disciplinary
proceedings which were brought, and identified certain aspects of the procedures
which cast doubt on their effectiveness.
The chief officers
appointed officers from the same force to conduct the investigations, save in
exceptional cases where they appointed an officer from another force, and the
majority of investigations were unsupervised by the Police Complaints Authority.
The report stated in
paragraph 55 et seq.:
“As already indicated,
the CPT itself entertains reservations about whether the PCA [Police Complaints
Authority], even equipped with the enhanced powers which have been proposed,
will be capable of persuading public opinion that complaints against the police
are vigorously investigated. In the view of the CPT, the creation of a
fully-fledged independent investigating agency would be a most welcome
development. Such a body should certainly, like the PCA, have the power to
direct that disciplinary proceedings be instigated against police officers.
Further, in the interests of bolstering public confidence, it might also be
thought appropriate that such a body be invested with the power to remit a case
directly to the CPS [Crown Prosecution Service] for consideration of
whether or not criminal proceedings should be brought.
In any event, the
CPT recommends that the role of the ‘chief officer’ within the existing system
be reviewed. To take the example of one Metropolitan Police officer to whom
certain of the chief officer’s functions have been delegated (the Director of
the CIB [Criminal Investigations Bureau]), he is currently expected to: seek
dispensations from the PCA; appoint investigating police officers and assume
managerial responsibility for their work; determine whether an investigating
officer’s report indicates that a criminal offence may have been committed;
decide whether to bring disciplinary proceedings against a police officer on the
basis of an investigating officer’s report, and liaise with the PCA on this
question; determine which disciplinary charges should be brought against an
officer who is to face charges; in civil cases, negotiate settlement strategies
and authorise payments into court. It is doubtful whether it is realistic to
expect any single official to be able to perform all of these functions in an
entirely independent and impartial way.
57. ... Reference
should also be made to the high degree of public interest in CPS decisions
regarding the prosecution of police officers (especially in cases involving
allegations of serious misconduct). Confidence about the manner in which such
decisions are reached would certainly be strengthened were the CPS to be obliged
to give detailed reasons in cases where it was decided that no criminal
proceedings should be brought. The CPT recommends that such a requirement be
introduced.”
THE LAW
I. ALLEGED VIOLATIONS
OF ARTICLE 2 OF THE CONVENTION
99. The applicant
submitted that his father Gervaise McKerr had been
unjustifiably killed and that there had been no effective investigation into the
circumstances of his death. He relied on Article 2 of the Convention, which
provides:
“1. Everyone’s right
to life shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of
life shall not be regarded as inflicted in contravention of this Article when it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any
person from unlawful violence;
(b) in order to
effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action
lawfully taken for the purpose of quelling a riot or insurrection.”
A. The submissions
made to the Court
1. The applicant
100. The applicant
submitted that the death of his father was the result of the unnecessary and
disproportionate use of force by an RUC officer and that his father was the
victim of a shoot-to-kill policy operated by the government of the United
Kingdom in Northern Ireland. He referred, inter alia, to reports by
Amnesty International and Human Rights Watch, as well as to statements made by
John Stalker, a senior policeman, who carried out an investigation into
allegations of such a policy. He argued that this case could not be looked at in
isolation from the other cases in Northern Ireland involving the use of lethal
force by State agents. In this context, it could be seen on analysis of deaths
caused by lethal force between 1969 and 1994 that there was at the material time
a practice whereby suspects were arbitrarily killed rather than arrested. He
pointed to the common features of pre-planning based on intelligence from
informers, the deployment of specialist military or police units and the maximum
use of force. In this case, the specially trained RUC officers shot at the car
using over 109 rounds, killing three unarmed men, without any attempt to effect
an arrest rather than use lethal force. This could not be regarded as the use of
minimum or proportionate force.
101. The inadequate
investigations into this and other cases were also evidence of official
tolerance on the part of the State of the use of unlawful lethal force. Here,
the police officers involved in the shooting were allowed to leave the scene
with their weapons; there was a delay before the Criminal Investigation
Department (CID) were allowed access to those officers for questioning; CID
officers were given incorrect information about where the shootings began; many
cartridge cases of fired rounds were never found; twenty-one months after the
event fragments of the bullet that killed the driver were found still embedded
in the car and no adequate steps were taken to find independent eyewitnesses.
The applicant referred to the description of the police investigation contained
in the book written by Mr Stalker, who said that there was a shockingly low
standard of basic techniques, and asserted that police officers had tampered
with the scene and effectively obstructed the investigation.
102. The applicant
also relied on the account of Mr Stalker as showing that the killing which he
had investigated was unlawful and part of a tacit shoot-to-kill policy, and
referred to evidence of further obstruction of investigations in the death of
Michael Tighe, where the surveillance tape had been withheld by MI5 (Security
Service Bureau), as substantiating that the three incidents under Mr Stalker’s
investigation were part of the shoot-to-kill policy. He submitted that a close
scrutiny of the available material showed that the deprivation of life did not
result from the use of force which was no more than absolutely necessary. To the
extent that the Court felt there were any issues to resolve, it should of its
own motion obtain the necessary material by undertaking an investigation under
Article 38 § 1 (a) of the Convention.
103. The applicant
further submitted that there had been no effective official investigation
carried out into the killing, relying on the international standards set out in
the Minnesota Protocol. He argued that the RUC investigation was inadequate and
flawed by its lack of independence and lack of publicity. The DPP’s own role was
limited by the RUC investigation, and any prosecution on the basis of that
investigation was not capable of remedying those deficiencies. Further, at the
trial, the judge dismissed the case without hearing the police officers, making
controversial comments implying judicial approval of extra-judicial
assassinations. The inquest was flawed by the delays, the limited scope of the
inquiry, a lack of legal aid for relatives, a lack of access to documents and
witness statements, the non-compellability of security-force or police witnesses
and the use of public interest immunity certificates. The Government could not
rely on civil proceedings either as this depended on the initiative of the
deceased’s family.
2. The Government
104. While the
Government did not accept the applicant’s claims under Article 2 that his father
was killed by an excessive or unjustified use of force, they considered that it
would be wholly inappropriate for the Court to seek itself to determine the
issues of fact arising from the substantive issues of Article 2. This might
involve the Court seeking to resolve issues, and perhaps examining witnesses and
conducting hearings, at the same time as the High Court in Northern Ireland,
with a real risk of inconsistent findings. It would allow the applicant to
forum-shop and would thus undermine the principle of exhaustion of domestic
remedies. They submitted that there were in any event considerable practical
difficulties involved in the Court pursuing an examination of the substantive
aspects of Article 2 as the factual issues would be numerous and complex,
involving live evidence with a substantial number of witnesses. This primary
fact-finding exercise should not be performed twice, in parallel, such an
undertaking wasting court time and money and giving rise to a real risk of
prejudice in having to defend two sets of proceedings simultaneously.
105. In so far as
the applicant invited the Court to find a practice of killing rather than
arresting terrorist suspects, this allegation was emphatically denied. The
Government submitted that such a wide-ranging allegation, calling into question
every anti-terrorist operation over the last thirty years, went far beyond the
scope of this application and referred to matters not before this Court. They
denied that there had been any obstruction to the police investigation in this
case, pointing out that the allegations made by Mr Stalker had been disputed by
the RUC as inaccurate and containing misrepresentations (see paragraph 33
above). It was necessary for the officers’ safety for them to leave the scene,
and all the necessary procedures at the scene of the crime had been carried out.
The fact that the three officers had been instructed not to refer to certain
matters was uncovered by the investigating officers who were not effectively
prevented from establishing the facts. The Stalker/Sampson inquiry was a
powerful indication of the Government’s commitment to punishing all crime,
whoever the perpetrator. The results of the inquiry showed that some offences of
obstruction had taken place and, although it had not been in the public interest
to institute any criminal proceedings, disciplinary proceedings had been brought
against eight officers (see paragraph 30 above).
106. The Government
further denied that domestic law in any way failed to comply with the
requirements of Article 2. They argued that the procedural aspect of this
provision was satisfied by the combination of procedures available in Northern
Ireland, namely, the prompt and thorough police investigation which was
supervised by the DPP, the criminal trial, the inquest proceedings and civil
proceedings. These secured the fundamental purpose of the procedural obligation,
in that they provided for effective accountability for the use of lethal force
by State agents. This did not require that convictions be achieved but that the
investigation was capable of leading to a prosecution, which was the case in
this application. They also pointed out that each case had to be judged on the
facts since the effectiveness of any procedural ingredient may vary with the
circumstances. In the present case, they submitted that the available procedures
together provided the necessary effectiveness, independence and transparency by
way of safeguard against abuse.
3. The Northern
Ireland Human Rights Commission
107. Referring to
relevant international standards concerning the right to life (for example, the
Inter-American Court of Human Rights’ case-law and the findings of the United
Nations Human Rights Committee), the Northern Ireland Human Rights Commission
submitted that the State had to carry out an effective official investigation
when an agent of the State was involved or implicated in the use of lethal
force. Internal accountability procedures had to satisfy the standards of
effectiveness, independence, transparency and promptness, and facilitate
punitive sanctions. It was, however, in their view not sufficient for a State to
declare that, while certain mechanisms were inadequate, a number of such
mechanisms could together provide the necessary protection. They submitted that
the investigative mechanisms relied on in this case, separately or in
combination, failed to do so. They referred, inter alia, to the
problematic role of the RUC in Northern Ireland, the allegedly serious
deficiencies in the mechanisms of police accountability, the limited scope of
and delays in inquests and the impossibility of compelling the members of the
security forces who have used lethal force to appear at inquests. They drew the
Court’s attention to the form of inquiry carried out in Scotland under the
Sheriff, a judge of criminal and civil jurisdiction, where the next-of-kin have
a right to appear. They urged the Court to take the opportunity to give precise
guidance as to the form which investigations into the use of lethal force by
State agents should take.
B. The Court’s
assessment
1. General
principles
108. Article 2,
which safeguards the right to life and sets out the circumstances where
deprivation of life may be justified, ranks as one of the most fundamental
provisions of the Convention, to which in peacetime no derogation is permitted
under Article 15. Together with Article 3, it also enshrines one of the basic
values of the democratic societies making up the Council of Europe. The
circumstances in which deprivation of life may be justified must therefore be
strictly construed. The object and purpose of the Convention as an instrument
for the protection of individual human beings also requires that Article 2 be
interpreted and applied so as to make its safeguards practical and effective
(see McCann and Others v. the United Kingdom, judgment of 27 September
1995, Series A no. 324, pp. 45-46, §§ 146-47).
109. In the light of
the importance of the protection afforded by Article 2, the Court must subject
deprivations of life to the most careful scrutiny, taking into consideration not
only the actions of State agents but also all the surrounding circumstances.
Where the events in issue lie wholly, or in large part, within the exclusive
knowledge of the authorities, as, for example, in the case of persons within
their control in custody, strong presumptions of fact will arise in respect of
any injuries or death which might occur. Indeed, the burden of proof may be
regarded as resting on the authorities to provide a satisfactory and convincing
explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR
2000-VII; and also Çakıcı
v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Ertak v. Turkey,
no. 20764/92, § 32, ECHR 2000-V; and Timurtaş v. Turkey, no. 23531/94,
§ 82, ECHR 2000-VI).
110. The text of
Article 2, read as a whole, demonstrates that it covers not only intentional
killing but also situations where it is permitted to “use force” which may
result, as an unintended outcome, in the deprivation of life. The deliberate or
intended use of lethal force is, however, only one factor to be taken into
account in assessing its necessity. Any use of force must be no more than
“absolutely necessary” for the achievement of one or more of the purposes set
out in sub-paragraphs (a) to (c). This term indicates that a stricter and more
compelling test of necessity must be employed from that normally applicable when
determining whether State action is “necessary in a democratic society” under
paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the force used
must be strictly proportionate to the achievement of the permitted aims (see
McCann and Others, cited above, p. 46, §§ 148-49).
111. The obligation
to protect the right to life under Article 2 of the Convention, read in
conjunction with the State’s general duty under Article 1 of the Convention to
“secure to everyone within [its] jurisdiction the rights and freedoms defined in
[the] Convention”, also requires by implication that there should be some form
of effective official investigation when individuals have been killed as a
result of the use of force (see, mutatis mutandis, McCann and Others,
cited above, p. 49, § 161, and Kaya v. Turkey, judgment of 19 February
1998, Reports of Judgments and Decisions 1998-I, p. 329, § 105). The
essential purpose of such an investigation is to secure the effective
implementation of the domestic laws which protect the right to life and, in
those cases involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. The kind of investigation that will
achieve those purposes may vary according to the circumstances. However,
whatever mode is employed, the authorities must act of their own motion once the
matter has come to their attention. They cannot leave it to the initiative of
the next-of-kin either to lodge a formal complaint or to take responsibility for
the conduct of any investigative procedures (see, for example, mutatis
mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).
112. For an
investigation into alleged unlawful killing by State agents to be effective, it
may generally be regarded as necessary for the persons responsible for and
carrying out the investigation to be independent from those implicated in the
events (see, for example, Güleç v. Turkey, judgment of 27 July 1998,
Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no.
21594/93, §§ 91-92, ECHR 1999-III). This means not only that there should be no
hierarchical or institutional connection but also clear independence (see, for
example, Ergi v. Turkey, judgment of 28 July 1998, Reports
1998-IV, pp. 1778-79, §§ 83-84, where the public prosecutor investigating the
death of a girl during an alleged clash showed a lack of independence through
his heavy reliance on the information provided by the gendarmes implicated in
the incident).
113. The
investigation must also be effective in the sense that it is capable of leading
to a determination of whether the force used in such cases was or was not
justified in the circumstances (see, for example, Kaya, cited above, p.
324, § 87) and to the identification and punishment of those responsible. This
is not an obligation of result, but of means. The authorities must take whatever
reasonable steps they can to secure the evidence concerning the incident,
including, inter alia, eyewitness testimony, forensic evidence and, where
appropriate, an autopsy which provides a complete and accurate record of injury
and an objective analysis of clinical findings, including the cause of death
(see, concerning autopsies, for example, Salman, cited above, §
106; concerning witnesses, for example, Tanrıkulu v. Turkey [GC], no.
23763/94, § 109, ECHR 1999-IV; and concerning forensic evidence, for example,
Gül v. Turkey, no. 22676/93, § 89, 14 December 2000, unreported). Any
deficiency in the investigation which undermines its ability to establish the
cause of death or the person responsible will risk falling foul of this
standard.
114. A requirement
of promptness and reasonable expedition is implicit in this context (see Yaşa
v. Turkey, judgment of 2 September 1998, Reports 1998-VI, pp.
2439-40, §§ 102-04; Çakıcı, cited above, §§ 80, 87 and 106;
Tanrıkulu, cited above, § 109; and Mahmut Kaya v. Turkey, no.
22535/93, §§ 106-07, ECHR 2000-III). It must be accepted that there may be
obstacles or difficulties which prevent progress in an investigation in a
particular situation. However, a prompt response by the authorities in
investigating a use of lethal force may generally be regarded as essential in
maintaining public confidence in their adherence to the rule of law and in
preventing any appearance of collusion in or tolerance of unlawful acts.
115. For the same
reasons, there must be a sufficient element of public scrutiny of the
investigation or its results to secure accountability in practice as well as in
theory. The degree of public scrutiny required may well vary from case to case.
In all cases, however, the next-of-kin of the victim must be involved in the
procedure to the extent necessary to safeguard his or her legitimate interests
(see Güleç, cited above, p. 1733, § 82, where the father of the victim
was not informed of the decision not to prosecute; Oğur, cited above, §
92, where the family of the victim had no access to the investigation and court
documents; and Gül, cited above, § 93).
2. Application in
the present case
(a) Concerning the
alleged responsibility of the State for the death of Gervaise
McKerr
116. It is
undisputed that Gervaise McKerr was shot and killed by
police officers while he was unarmed. This use of lethal force falls squarely
within the ambit of Article 2, which requires any such action to pursue one of
the purposes set out in second paragraph and to be absolutely necessary for that
purpose. A number of key factual issues arise in this case, in particular
whether the officers acted on the basis of an honest belief perceived for good
reasons to be valid at the time but which turned out subsequently to be
mistaken, namely, that they were at risk from Gervaise
McKerr or the other men in the car. Determining this issue would involve,
inter alia, a consideration of the possibility that ricochets gave the
impression of gun flashes from the car, the view which the officers had of the
men in the car, the basis on which they considered that they were at risk and
whether there was any possibility of attempting an arrest. Assessment of the
credibility and reliability of the various witnesses, in particular, the police
officers who opened fire, would play a crucial role.
117. These are all
matters which are currently pending examination in civil proceedings brought by
Eleanor Creaney and continued by the applicant alleging death by wrongful act.
The Court considers that in the circumstances of this case it would be
inappropriate and contrary to its subsidiary role under the Convention to
attempt to establish the facts of this case by embarking on a fact-finding
exercise of its own by summoning witnesses. Such an exercise would duplicate the
proceedings before the civil courts which are better placed and equipped as
fact-finding tribunals. While the European Commission of Human Rights has
previously embarked on fact-finding missions in Turkish cases where there were
proceedings pending against the alleged security-force perpetrators of unlawful
killings, it may be noted that these proceedings were criminal and that they had
terminated, at first instance at least, by the time the Court examined the
applications. In those cases, it was an essential part of the applicants’
allegations that the defects in the investigation were such as to render those
criminal proceedings ineffective (see, for example, Salman, cited above,
§ 107, where the police officers were acquitted of torture due to the lack of
evidence resulting principally from a defective autopsy procedure, and Gül,
cited above, § 89, where, inter alia, the forensic investigation at the
scene and autopsy procedures hampered any effective reconstruction of events).
118. In the present
case, the Court considers that there are no concrete factors which could deprive
the civil courts of their ability to establish the facts and determine the
lawfulness or otherwise of Gervaise McKerr’s death
(see paragraphs 124-26 below concerning the applicant’s allegations concerning
the defects in the police investigation). While it appears that the applicant
has not pursued these proceedings with any vigour, they have not been withdrawn.
Even if it may be questioned whether, almost twenty years after the events, the
lapse of time will make it difficult for the civil court to piece together the
evidence, any such attempt should take place in a domestic forum, not an
international jurisdiction.
119. Nor is the
Court persuaded that it is appropriate to rely on the documentary material
provided by the parties to reach any conclusions as to responsibility for the
death of the applicant’s father. Many of the written accounts and assertions
made in various documents have not been tested in examination or
cross-examination and would provide an incomplete and potentially misleading
basis for any such attempt. The situation cannot be equated to a death in
custody where the burden may be regarded as resting on the State to provide a
satisfactory and plausible explanation.
120. The Court is
also not prepared to conduct, on the basis largely of statistical information
and selective evidence, an analysis of incidents over the past thirty years with
a view to establishing whether they disclose a practice by security forces of
using disproportionate force. This would go far beyond the scope of the present
application.
121. Conversely, as
regards the Government’s argument that the availability of civil proceedings
provided the applicant with a remedy which he has yet to exhaust as regards
Article 35 § 1 of the Convention and, therefore, that no further examination of
the case is required under Article 2, the Court recalls that the obligations of
the State under Article 2 cannot be satisfied merely by awarding damages (see,
for example, Kaya, cited above, p. 329, § 105, and Yaşa, cited
above, p. 2431, § 74). The investigations required under Articles 2 and 13 of
the Convention must be able to lead to the identification and punishment of
those responsible. The Court therefore examines below whether there has been
compliance with this procedural aspect of Article 2 of the Convention.
(b) Concerning the
procedural obligation under Article 2 of the Convention
122. Following the
death of Gervaise McKerr and the two other men in the
car, an investigation was commenced by the RUC. On the basis of that
investigation, there was a decision by the DPP to prosecute three officers. They
were acquitted at a criminal trial. An independent police inquiry was launched
to investigate suspicions of obstruction in the police investigations of this
and two other incidents. An inquest was opened on 4 June 1984 and abandoned on 8
September 1994, without reaching any conclusion.
123. The applicant
has made numerous complaints about these procedures, while the Government have
contended that even if one part of the procedure failed to provide a particular
safeguard, taken as a whole, the system ensured the requisite accountability of
the police for any unlawful act.
(i) The police
investigation
124. Firstly,
concerning the police investigation, the Court observes that the applicant’s
criticisms of the procedures are based largely on the book written by Mr
Stalker. His assertions, based on his own inquiries in 1984-85, have, however,
been disputed by the RUC in a report issued in 1990. This gives an explanation
for a number of the points raised by the applicant – for example, the failure to
find the missing cartridges was perhaps due to the torrential rain washing items
into the drains and a mistaken identification of an incident location was
speedily corrected. On other points, the RUC asserted that Mr Stalker was simply
inaccurate or mistaken.
125. The Court is
not in a position to adjudicate between the rival assertions, some of which are
more serious than others. It has not been shown, for example, that the RUC
failed to look for or find relevant witnesses. Appeals were made to the public,
and enquiries carried out with local residents. The fact that Mr Stalker found
one potential witness who had not been contacted by the RUC is not to be given
undue importance.
126. Nevertheless,
it is not disputed that the police officers’ weapons were not handed over to the
scene of crimes officer until the next day and that the officers were not
interviewed until 15 November 1982, some three to four days after the incident.
There is no indication, however, whether the lapse of time with regard to the
guns was a few hours or substantially longer. It is perhaps surprising that the
guns were not required to be surrendered as soon as possible and that the
officers were not interviewed at an earlier stage. The Government stated that
the latter was a conscious decision of the investigating officers, who wished to
collect other evidence prior to the interview. It may be noted that other
interviews took place still later to seek further clarification in the light of
forensic evidence. It is not altogether obvious, therefore, that it was
necessary to wait several days before questioning the officers for the first
time. That said, however, there is no indication of any difficulty arising from
the forensic evidence concerning the use of the guns or the number of rounds
fired. Nor was the delay of some days in interviewing potentially key suspects
in itself a matter of serious prejudice to the investigation as a whole. It
does, however, lend weight to assertions that investigations into the use of
lethal force by police officers give the appearance of being qualitatively
different from those concerning civilian suspects.
127. It is further
undisputed that the three police officers were instructed not to reveal certain
information to the RUC officers investigating the shooting, namely that they
were Special Branch officers and were working on information obtained from
intelligence operations. This was, as stated by the Government, discovered by
the RUC investigators. It sparked off further inquiries, which disclosed
evidence of obstruction amounting to criminal offences and eventually led to
disciplinary proceedings. Whether the inquiries revealed any further examples of
withholding information from the investigation or attempts to obstruct the
investigation by police officers in this case is not known, as the Stalker and
Sampson reports have never been disclosed. It is, however, of serious concern
that any attempts were made, on the instructions of a senior officer, to conceal
information from the investigation. It raises legitimate doubts as to the
overall integrity of the investigative process.
128. In such a
context, the necessity for safeguards against undue influence and a lack of
impartiality is thrown into prominence. It must be noted that the investigation
into the killing by RUC police officers was headed and carried out by other RUC
officers. It appears likely, although no direct submissions have made been on
this point, that this investigation, as required by law, was supervised by the
ICPC, an independent police-monitoring authority. Their approval would have been
required of the officer leading the investigation, and it would appear that they
found the conduct of the investigation satisfactory. There was nonetheless a
hierarchical link between the officers investigating and the officers subject to
investigation, all of whom were under the responsibility of the RUC Chief
Constable, who played a role in the process of instituting any disciplinary or
criminal proceedings (see paragraphs 82-84 above). The power of the ICPC to
require the RUC Chief Constable to refer the investigating report to the DPP for
a decision on prosecution or to require disciplinary proceedings to be brought
is not, however, a sufficient safeguard where the investigation itself has been
for all practical purposes conducted by police officers connected with those
under investigation. The Court notes the recommendation of the CPT that a fully
independent investigating agency would help to overcome lack of confidence in
the system which exists in England and Wales and is in some respects similar
(see paragraph 98 above).
129. As regards the
lack of public scrutiny of the police investigations, the Court considers that
disclosure or publication of police reports and investigative materials may
involve sensitive issues with possible prejudicial effects to private
individuals or other investigations and, therefore, cannot be regarded as an
automatic requirement under Article 2. The requisite access of the public or the
victim’s relatives may be provided for in other stages of the available
procedures.
(ii) The role of
the DPP
130. The Court
recalls that the DPP is an independent legal officer charged with the
responsibility to decide whether to bring prosecutions in respect of any
possible criminal offences carried out by a police officer. He is not required
to give reasons for any decision not to prosecute and in this case he did not do
so. No challenge by way of judicial review exists to require him to give reasons
in Northern Ireland, though it may be noted that in England and Wales, where the
inquest jury may still reach verdicts of unlawful death, the courts have
required the DPP to reconsider a decision not to prosecute in the light of such
a verdict, and will review whether those reasons are sufficient. This
possibility does not exist in Northern Ireland where the inquest jury is no
longer permitted to issue verdicts concerning the lawfulness or otherwise of a
death.
131. The Court does
not doubt the independence of the DPP. In this case, he directed that
prosecution of three police officers take place. No issue therefore arises
concerning the lack of transparency in a decision not to prosecute. The
applicant nonetheless argued that the DPP’s decision could not be regarded as
remedying the deficiencies in the police investigation. However, the Court is
not persuaded by the material before it that there was any fundamental flaw in
the investigation which can be said to have undermined the prosecution ab
initio or deprived it of any efficacy.
132. The Court
examines further below whether the criminal trial furnished the investigation
required by Article 2 of the Convention.
(iii) The
criminal trial of the three police officers
133. As stated above
(see paragraph 113), a crucial aspect of the investigation into a killing by
State agents is that it is capable of leading to the prosecution and punishment
of those responsible. In this case, three police officers were charged with the
murder of one of the men in the incident, presumably for tactical reasons. It is
clear that the evidence submitted by the prosecution related to the incident as
a whole and the judge in his decision referred to the killing of all three men.
If the trial had resulted in convictions, they would have, at least indirectly,
concerned the killing of the applicant’s father and would have arguably
satisfied the prosecution and punishment requirement of Article 2.
134. In the normal
course of events, a criminal trial, with an adversarial procedure before an
independent and impartial judge, must be regarded as furnishing the strongest
safeguards of an effective procedure for the finding of facts and the
attribution of criminal responsibility. The applicant has pointed to the fact
that in this case the judge acquitted the officers on the basis of “no case to
answer”, without waiting to hear the defence case, in particular, the oral
testimony of those officers. In addition, he drew attention to the comments of
the judge which gave rise to considerable controversy in appearing to praise the
three officers for sending the three unarmed IRA suspects to face divine
judgment.
135. It is true that
the accounts of the killings given in the statements of the three officers were
not subject to examination or cross-examination. However, it is not for this
Court to substitute its own opinion as to whether the prosecution had adduced
sufficient evidence to require the defendants to answer it for that of the trial
judge, who heard the witnesses and had a better overall picture of the evidence
than it can hope to have at this late stage. Nor, although it can understand why
the judge’s remarks were ill-received, does it consider that these disclosed any
lack of impartiality or bias. On the judge’s findings that the use of force was
reasonable, no question of condonation of unlawful killings arose.
136. However, the
scope of the criminal trial was restricted to the criminal responsibility of the
three officers. The applicant, relying, inter alia, on the Minnesota
Protocol (see paragraph 97 above), argued that the trial was not capable of
addressing wider concerns about other aspects of official involvement in the
killings. One of these aspects was the deliberate instructions of a senior
officer to the suspects to conceal information from the investigating officers,
which raised doubts as to what other information or obstruction might have
occurred. Another was the fact that there had been two other incidents in Armagh
within a month in which police officers from the special mobile support units
had used lethal force, killing Michael Tighe on 24 November 1982 and Seamus Grew
and Roddy Carroll on 12 December 1982, all of whom had been unarmed. A
prosecution had occurred concerning the latter incident and had also resulted in
an acquittal. It was alleged that police officers involved in these incidents
had similarly been instructed to conceal evidence.
137. The Court
considers that there may be circumstances where issues arise that have not, or
cannot, be addressed in a criminal trial and that Article 2 may require wider
examination. Serious concerns arose from these three incidents as to whether
police counter-terrorism procedures involved an excessive use of force, whether
deliberately or as an inevitable by-product of the tactics that were used. The
deliberate concealment of evidence also cast doubts on the effectiveness of
investigations in uncovering what had occurred. In other words, the aims of
reassuring the public and the members of the family as to the lawfulness of the
killings had not been met adequately by the criminal trial. In this case
therefore, the Court finds that Article 2 required a procedure whereby these
elements could be examined and doubts confirmed, or laid to rest. It considers
below whether the authorities adequately addressed these concerns.
(iv) The
independent police inquiry
138. The DPP was
aware from an early stage that problems had arisen in this case as to
concealment of evidence. Prior to the trial he had requested in or about July
1983 that further inquiries be made (see paragraph 16 above). On 11 April 1984
he took the step of exercising his statutory powers under section 6(3) of the
Prosecution of Offences (Northern Ireland) Order 1972 to request the Chief
Constable of the RUC to conduct further investigations into the three cases.
This was intended not as a reinvestigation of the incidents themselves but
instead to establish whether there was evidence of perverting the course of
justice. The Chief Constable appointed Mr Stalker, a senior police officer from
a different police force in England, to carry out the investigation.
139. The inquiry
which followed sparked considerable controversy, which lasts to the present day.
Mr Stalker was removed from the inquiry on 29 May 1986 and replaced by Mr
Sampson, also a senior police officer from outside Northern Ireland. None of the
reports was made public. That misconduct had been uncovered was revealed in a
short statement by the Attorney-General on 25 January 1988 which at the same
time announced that the DPP had decided that no prosecution of police officers
for offences of obstruction was justified in the public interest.
140. The Court
considers that the inquiry may be regarded as sufficiently independent, though
it appears that the RUC Chief Constable played a role in the disposal of the
reports that ensued. Indeed, the report and the investigation materials were
regarded to be the property of the RUC. It cannot, however, be regarded as
having proceeded with reasonable expedition. It took three years and nine months
to culminate in a statement to Parliament. There was a delay between the issue
of Mr Stalker’s Interim Report on 18 September 1985 to the RUC Chief Constable
and the transfer of the report by him to the DPP on 15 February 1986, a gap of
almost five months. Following Mr Stalker’s removal on 29 May 1986, it took a
further ten months for Mr Sampson to issue the final part of his own report, on
10 April 1997. It took another nine months before the Attorney-General reported
on the matter in Parliament.
141. Moreover, since
the reports and their findings were not published, in full or in extract, it
cannot be considered that there was any public scrutiny of the investigation.
This lack of transparency may be considered as having added to, rather than
dispelled, the concerns which existed. No reasons were given to explain the
decision that prosecutions were not considered in the public interest, and no
possibility existed of challenging the failure to give such reasons.
(v) The inquest
142. In Northern
Ireland, as in England and Wales, investigations into deaths may also be
conducted by inquests. Inquests are public hearings conducted by coroners –
independent judicial officers – normally sitting with a jury, to determine the
facts surrounding a suspicious death. In McCann and Others (cited above,
p. 49, § 162) the Court found that the inquest held into the deaths of the three
IRA suspects shot by the SAS in Gibraltar satisfied the procedural obligation
contained in Article 2, as it provided a detailed review of the events
surrounding the killings and provided the relatives of the deceased with the
opportunity to examine and cross-examine witnesses involved in the operation.
In this case, a
fact-finding function had already been carried out by the criminal court. This
had, however, dealt with the criminal responsibility for the death of one of the
men in the car. It had not covered the allegations of a cover-up and
shoot-to-kill policy that the independent police inquiry had dealt with. The
Court has considered whether the inquest provided a public and effective
examination of these matters.
It has concluded,
however, that while the inquest was indeed public it was not effective. Its
effectiveness was handicapped in a number of ways.
143. The scope of
the inquest was limited to the facts immediately relevant to the deaths under
examination. According to the case-law of the national courts, the coroner is
required to confine his investigation to the matters which directly caused the
deaths and should not extend his inquiry into the broader circumstances. While
the domestic courts accept that an essential purpose of the inquest is to allay
rumours and suspicions of how a death came about, they have considered it
important that such an inquiry should not be allowed “to drift into the
uncharted seas of rumour and allegation” (see paragraphs 75-76 above). The Court
agrees that a detailed investigation into policy issues or alleged conspiracies
may not be justifiable or necessary. However, in this case, legitimate and
serious concerns had arisen. The coroner had identified these in his address to
the jury on 5 May 1992, when he pointed out that a criminal trial had already
taken place and that he was only holding an inquest as it appeared that further
evidence might have come to light subsequently. He was however unable to obtain
copies of either the Stalker or Sampson reports or other alleged associated
material as the High Court, upholding the RUC Chief Constable’s objections, held
that disclosure of the documents was not necessary for the purpose of the
inquest. The High Court judge commented that the inquest was not an appropriate
place for dealing properly with issues of an alleged shoot-to-kill policy.
144. In inquests in
Northern Ireland, a person suspected of causing death may not be compelled to
give evidence (Rule 9(2) of the 1963 Coroners Rules – see paragraph 73 above).
In practice, in inquests involving the use of lethal force by members of the
security forces in Northern Ireland, the police officers or soldiers concerned
do not attend. Instead, written statements or transcripts of interviews are
admitted in evidence. In the inquest in this case, the police officers involved
in the shooting were not required to appear at the inquest and declined to do
so. Sergeant M. and officers B. and R. were therefore not subjected to
examination concerning their account of events. Their statements were made
available to the coroner instead. This did not enable any satisfactory
assessment to be made of either their reliability or credibility on crucial
factual issues. It detracted from the inquest’s capacity to establish the facts
relevant to the death, and thereby to achieve one of the purposes required by
Article 2 of the Convention (see also paragraph 10 of the UN Principles on
Extra-legal Executions, cited in paragraph 96 above).
145. The jury’s
verdict in this case could only give the identity of the deceased and the date,
place and cause of death (see paragraph 70 above). In England and Wales, as in
Gibraltar, the jury is able to reach a number of verdicts, including “unlawful
death”. As already noted, where an inquest jury gives such a verdict in England
and Wales, the DPP is required to reconsider any decision not to prosecute and
to give reasons which are amenable to challenge in the courts. In this case, a
criminal prosecution had already occurred. The only relevance that the inquest
could have had to any further prosecutions was that the coroner could have sent
a written report to the DPP if he considered that a criminal offence might have
been committed. It is not apparent, however, that the DPP would have been
required to take any decision in response to this notification or to provide
detailed reasons for not making any response. The inquest therefore was unable
to play any effective role in the identification or prosecution of any criminal
offences which may have occurred and, in that respect, falls short of the
requirements of Article 2.
146. While the
public nature of the inquest proceedings was not in dispute, the applicant
complained that the ability of his family to participate in the proceedings as
next-of-kin to the deceased was significantly prejudiced as legal aid was not
available in inquests and documents were not disclosed in advance of the
proceedings.
The Court notes
however that, as with the next-of-kin in McCann and Others, the
family were represented by a solicitor and counsel at the inquest and had been
granted legal aid for the judicial review applications associated with it. It
cannot therefore be said that the applicant’s family was prevented, by the lack
of legal aid, from obtaining any necessary legal assistance at the inquest.
147. As regards
access to documents, at that time the family of the deceased was not able to
obtain copies of any witness statements until the witness concerned was giving
evidence. This was also the position in McCann and Others, where
the Court considered that this had not substantially hampered the ability of the
families’ lawyers to question the witnesses (see judgment cited above, p. 49, §
162). However it must be noted that the inquest in McCann and Others
was to some extent exceptional when compared with the proceedings in a number of
cases in Northern Ireland (see also Hugh Jordan v. the United Kingdom,
no. 24746/94, judgment of 4 May 2001; Kelly and Others v. the United Kingdom,
no. 30054/96, judgment of 4 May 2001; and Shanaghan v. the United Kingdom,
no. 37715/97, judgment of 4 May 2001). The promptness and thoroughness of the
inquest in McCann and Others left the Court in no doubt that the
important facts relating to the events had been examined with the active
participation of the applicants’ experienced legal representative. The fact that
the next-of-kin did not have access to the documents did not, in that context,
contribute any significant handicap. However, since that case, the Court has
laid more emphasis on the importance of involving the next-of-kin of a deceased
in the procedure and providing them with information (see Oğur, cited
above, § 92).
Further, the Court
notes that the practice of non-disclosure has changed in the United Kingdom in
the light of the Stephen Lawrence inquiry and that it is now recommended that
the police disclose witness statements twenty-eight days in advance (see
paragraph 78 above).
148. In this case,
it may be observed that the lack of access to the witness statements was the
reason for several long adjournments in the inquest. This contributed
significantly to prolonging the proceedings. The Court considers this further in
the context of the delay (see paragraph 152 below). The previous inability of
the applicant’s family to have access to witness statements before the
appearance of the witness must also be regarded as having placed them at a
disadvantage in terms of preparation and ability to participate in questioning.
This contrasts strikingly with the position of the RUC who had the resources to
provide for legal representation and full access to relevant documents. The
Court considers that the right of the family of the deceased whose death is
under investigation to participate in the proceedings requires that the
procedures adopted ensure the requisite protection of their interests, which may
be in direct conflict with those of the police or security forces implicated in
the events. The Court is not persuaded that the applicant’s interests as
next-of-kin were fairly or adequately protected in this respect.
149. Reference has
also been made to the allegedly frequent use of public interest immunity
certificates in inquests to prevent certain questions or disclosure of certain
documents. In this case, the Secretary of State for Northern Ireland issued a
certificate on 9 November 1988 covering, for example, the counter-terrorism
capabilities of the RUC and information or documents revealing details of the
intelligence operation. A second certificate was issued on 5 May 1994 to prevent
disclosure of the Stalker and Sampson reports on the grounds, inter alia,
of the need to protect the effectiveness of special units and the integrity of
intelligence operations.
150. It is not
apparent that the first certificate prevented any relevant questioning of
witnesses. As regards the second certificate, the Court recalls that the Chief
Constable, in contesting the relevance of the Stalker and Sampson reports to the
inquest, declared that all witness statements and evidence in the inquiry had
been provided to the coroner (see paragraph 58 above). In the High Court, Judge
Nicholson considered that all that remained undisclosed were statements of
opinion, criticisms, recommendations, etc. It is not apparent that Judge
Nicholson was himself able to examine the reports to verify whether anything
relevant to the inquest was contained in them. Judge Nicholson also commented
that there was nothing to prevent Mr Thorburn giving evidence to the inquest
concerning relevant matters pertaining to the deaths, but that he could not seek
to rely on the reports to give any “overview” to the jury. The Court observes
that if Mr Thorburn had attempted to give evidence about the contents of the
reports some seven to eight years after they had been compiled, it is unlikely
that his memory would have been accurate as regards details. It is also probable
that objection would have been made by the Government, relying on the PII
Certificate.
151. This Court is
not in a position to assert whether the Stalker and Sampson reports contained
any material relevant to the issue of the existence of any shoot-to-kill policy.
There are strong indications that the Stalker Interim Report did so – the RUC
have criticised Mr Stalker’s attempt to reinvestigate the shootings in addition
to the obstructions of justice. In his statement to Parliament, the
Attorney-General referred to the DPP reviewing the reports and also the evidence
concerning the shooting incidents. The reports in any event dealt with the
evidence of obstruction of justice, which was relevant to the wider issues
thrown up by the case. The Court finds that the inquest was thus prevented from
reviewing potentially relevant material and was therefore unable to fulfil any
useful function in carrying out an effective investigation of matters arising
since the criminal trial.
152. Finally, the
Court has had regard to the delay in the proceedings. The inquest opened on 4
June 1984, after the conclusion of the criminal proceedings. It then adjourned
for successive periods:
– from September
1984 to November 1988, pending the independent police inquiry under Mr Stalker
and Mr Sampson;
– from 17 November
1988 to 8 March 1990, a period of about fifteen months, while the family
challenged the admission in evidence of the written statements of the police
officers;
– from 20 July 1990
to 6 February 1992, another eighteen months, pending a challenge to such
statements in another case;
– from 29 May 1992
to 28 May 1993, a year, pending the family’s challenge of the refusal to give
them access to a witness statement;
– while the inquest
resumed on 31 January 1994, it was almost immediately delayed while the coroner
and Chief Constable entered into a dispute about the disclosure of documents.
The judicial review proceedings ended on 11 July 1994 and the inquest was
abandoned a few months later.
153. The Court
observes that a number of the adjournments were requested by the applicant’s
family. They related principally to legal challenges to procedural aspects of
the inquest which they considered essential to their ability to participate – in
particular, access to the documents. While it is therefore the case that the
applicant’s family contributed significantly to the delays, this to some extent
resulted from the difficulties facing relatives in participating in inquest
procedures (see paragraph 148 above concerning the non-disclosure of witness
statements). It cannot be regarded as unreasonable that the applicant made use
of the legal remedies available to him to challenge these aspects of the inquest
procedure.
154. A long delay
had already resulted from the coroner’s decision to await the outcome of the
independent police inquiry. This might have been a reasonable step where the
inquiry provided an effective investigation into the remaining issues after the
criminal trial. The Court has found above that it was lacking in expedition and
transparency. While the inquiry ended in a public statement in Parliament in
January 1988, the inquest was not rescheduled to start until 14 November 1988,
almost six years after the events. The coroner’s unsuccessful attempt to obtain
documents which he considered relevant to the inquest accounted for the period
from September 1993 to May 1994. When the inquest was abandoned by the coroner
on 8 September 1994, little evidence had been heard.
155. In the
circumstances it cannot be considered that the inquest was held either promptly
or progressed with reasonable expedition (see, mutatis mutandis,
concerning speed requirements under Article 6 § 1 of the Convention,
Scopelliti v. Italy, judgment of 23 November 1993, Series A no. 278, p. 9, §
25). The frequent and lengthy adjournments call into question whether the
inquest system was at the relevant time structurally capable of providing for
both speed and effective access for the deceased’s family, and the necessary
documents for the coroner’s examination of the issues.
(vi) Civil
proceedings
156. As found above
(see paragraph 118), civil proceedings would provide a judicial fact-finding
forum, with the attendant safeguards and the ability to reach findings of
unlawfulness, with the possibility of damages. It is, however, a procedure
undertaken on the initiative of the applicant, not the authorities, and it does
not involve the identification or punishment of any alleged perpetrator. As
such, it cannot be taken into account in the assessment of the State’s
compliance with its procedural obligations under Article 2 of the Convention.
(vii) Conclusion
157. The Court finds
that the proceedings for investigating the use of lethal force by the police
officers have been shown in this case to disclose the following shortcomings:
– the police
officers investigating the incident were not sufficiently independent of the
officers implicated in the incident;
– there was a lack
of public scrutiny and information to the victim’s family concerning the
independent police investigation into the incident, including inadequate
justification for the DPP’s decision not to prosecute any police officer at that
stage for perverting or attempting to pervert the course of justice;
– the inquest
procedure did not allow for any verdict or findings which might play an
effective role in securing a prosecution in respect of any criminal offence
which may have been disclosed;
– the non-disclosure
of witness statements prior to their appearance at the inquest prejudiced the
ability of the applicant’s family to participate in the inquest and contributed
to long adjournments in the proceedings;
– the PII
Certificate had the effect of preventing the inquest from examining matters
relevant to the outstanding issues in the case;
– the police
officers who shot Gervaise McKerr were not required to
attend the inquest as witnesses;
– the independent
police investigation did not proceed with reasonable expedition;
– the inquest
proceedings did not commence promptly and were not pursued with reasonable
expedition.
158. The lack of
independence of the RUC investigation, and the lack of transparency regarding
the subsequent inquiry into the alleged police obstruction in that
investigation, may be regarded as being at the heart of the problems in the
procedures which followed. The domestic courts commented that the inquest was
not the proper forum for dealing with the wider issues in the case. However, no
other public, accessible procedure was available to remedy the shortcomings.
159. It is not for
this Court to specify in any detail which procedures the authorities should
adopt in providing for the proper examination of the circumstances of a killing
by State agents. While reference has been made, for example, to the Scottish
model of inquiry conducted by a judge of criminal jurisdiction, there is no
reason to assume that this may be the only method available. Nor can it be said
that there should be one unified procedure satisfying all requirements. If the
aims of fact-finding, criminal investigation and prosecution are carried out by
or shared between several authorities, as in Northern Ireland, the Court
considers that the requirements of Article 2 may nonetheless be satisfied if,
while seeking to take into account other legitimate interests such as national
security or the protection of material relevant to other investigations, the
various procedures provide for the necessary safeguards in an accessible and
effective manner. In the present case, the available procedures have not struck
the right balance.
160. The Court would
observe that the shortcomings in transparency and effectiveness identified above
run counter to the purpose identified by the domestic courts of allaying
suspicions and rumour. Proper procedures for ensuring the accountability of
agents of the State are indispensable in maintaining public confidence and
meeting the legitimate concerns that might arise from the use of lethal force. A
lack of such procedures will only add fuel to fears of sinister motivations, as
is illustrated, inter alia, by the submissions made by the applicant
concerning the alleged shoot-to-kill policy.
161. The Court finds
that there has been a failure to comply with the procedural obligation imposed
by Article 2 of the Convention and that there has been, in this respect, a
violation of that provision.
II. ALLEGED VIOLATION
OF ARTICLE 14 OF THE CONVENTION
162. The applicant
relied on Article 14 of the Convention, which provides:
“The enjoyment of the
rights and freedoms set forth in [the] Convention shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
163. The applicant
submitted that the circumstances of the killing of his father disclosed
discrimination. He alleged that, between 1969 and March 1994, 357 people had
been killed by members of the security forces, the overwhelming majority of whom
were young men from the Catholic or nationalist community. When compared with
the numbers of those killed from the Protestant community and having regard to
the fact that there have been relatively few prosecutions (thirty-one) and only
a few convictions (four, at the date of this application), this showed that
there was a discriminatory use of lethal force and a lack of legal protection
vis-à-vis a section of the community on grounds of national origin or
association with a national minority.
164. The Government
replied that there was no evidence that any of the deaths which occurred in
Northern Ireland were analogous or that they disclosed any difference in
treatment. Bald statistics (the accuracy of which was not accepted) were not
enough to establish broad allegations of discrimination against Catholics or
nationalists.
165. Where a general
policy or measure has disproportionately prejudicial effects on a particular
group, it is not excluded that this may be considered as discriminatory
notwithstanding that it is not specifically aimed or directed at that group.
However, even though statistically it appears that the majority of people shot
by the security forces were from the Catholic or nationalist community, the
Court does not consider that statistics can in themselves disclose a practice
which could be classified as discriminatory within the meaning of Article 14.
There is no evidence before the Court which would entitle it to conclude that
any of those killings, save the four which resulted in convictions, involved the
unlawful or excessive use of force by members of the security forces.
166. The Court finds
that there has been no violation of Article 14 of the Convention.
III. ALLEGED VIOLATION
OF ARTICLE 13 OF THE CONVENTION
167. The applicant
complained that he had no effective remedy in respect of his complaints, relying
on Article 13 of the Convention, which provides:
“Everyone whose rights
and freedoms as set forth in [the] Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.”
168. The applicant
referred to his submissions concerning the procedural aspects of Article 2 of
the Convention, claiming that, in addition to the payment of compensation where
appropriate, Article 13 required a thorough and effective investigation capable
of leading to the identification and punishment of those responsible and
including effective access for the complainant to the investigatory procedure.
169. The Government
submitted that the complaints raised under Article 13 were either premature or
ill-founded. They claimed that the combination of available procedures, which
included the pending civil proceedings and the inquest, provided effective
remedies.
170. The Court’s
case-law indicates that Article 13 of the Convention guarantees the availability
at the national level of a remedy to enforce the substance of the Convention
rights and freedoms in whatever form they might happen to be secured in the
domestic legal order. The effect of Article 13 is thus to require the provision
of a domestic remedy to deal with the substance of an “arguable complaint” under
the Convention and to grant appropriate relief, although Contracting States are
afforded some discretion as to the manner in which they conform to their
Convention obligations under this provision. The scope of the obligation under
Article 13 varies depending on the nature of the applicant’s complaint under the
Convention. Nevertheless, the remedy required by Article 13 must be “effective”
in practice as well as in law (see Aksoy v. Turkey, judgment of 18
December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey,
judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; and
Kaya, cited above, pp. 329-30, § 106).
171. In cases
involving the use of lethal force or a suspicious death, the Court has also
stated that, given the fundamental importance of the right to the protection of
life, Article 13 requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of leading to the
identification and punishment of those responsible for the deprivation of life,
including effective access for the complainant to the investigation procedure
(see Kaya, cited above, pp. 330-31, § 107). In a number of cases it has
found that there has been a violation of Article 13 where no effective criminal
investigation had been carried out into a suspicious death, noting that the
requirements of Article 13 were broader than the obligation to investigate
imposed by Article 2 of the Convention (see also Ergi, cited above, p.
1782, § 98, and Salman, cited above, § 123).
172. It must be
observed that these cases derived from the situation pertaining in south-east
Turkey, where applicants were in a vulnerable position due to the ongoing
conflict between the security forces and the PKK and where the most accessible
means of redress open to applicants was to complain to the public prosecutor,
who was under a duty to investigate alleged crimes. In the Turkish system, the
complainant was able to join any criminal proceedings as an intervenor and apply
for damages at the conclusion of any successful prosecution. The public
prosecutor’s fact-finding function was also essential to any attempt to engage
in civil proceedings. In those cases, therefore, it was sufficient for the
purposes of former Article 26 (now Article 35 § 1) of the Convention that an
applicant complaining of unlawful killing raised the matter with the public
prosecutor. There was accordingly a close procedural and practical relationship
between the criminal investigation and the remedies available to the applicant
in the legal system as a whole.
173. The legal
system pertaining in Northern Ireland is different and any application of
Article 13 to the factual circumstances of any case from that jurisdiction must
take this into account. An applicant who claims the unlawful use of force by
soldiers or police officers in the United Kingdom must as a general rule exhaust
the domestic remedies open to him or her by taking civil proceedings by which
the courts will examine the facts, determine liability and if appropriate award
compensation. These civil proceedings are wholly independent of any criminal
investigation and their efficacy has not been shown to rely on the proper
conduct of criminal investigations or prosecutions (see, for example, Caraher
v. the United Kingdom (dec.), no. 24520/94, ECHR 2000-I).
174. In the present
case, the applicant has lodged civil proceedings, which are pending. The Court
has found no elements which would prevent those proceedings providing the
redress identified above in respect of the alleged excessive use of force (see
paragraph 118 above).
175. As regards the
applicant’s complaints concerning the investigation into the death carried out
by the authorities, these have been examined above under the procedural aspect
of Article 2 (see paragraphs 122-61). The Court finds that no separate issue
arises in the present case.
176. The Court
concludes that there has been no violation of Article 13 of the Convention.
IV. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
177. Article 41 of
the Convention provides:
“If the Court finds
that there has been a violation of the Convention or the Protocols thereto, and
if the internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
178. The applicant
submitted that he was entitled to damages in respect of the unlawful deprivation
of the life of his father Gervaise McKerr.
179. The Government
disputed that any award of damages would be appropriate in the present case.
180. The Court
recalls that in McCann and Others (cited above, p. 63, § 219), it found a
substantive breach of Article 2 of the Convention, concluding that it had not
been shown that the killing of the three IRA suspects constituted the use of
force which was no more than absolutely necessary in defence of persons from
unlawful violence. However, the Court considered it inappropriate to make any
award to the applicants, as personal representatives of the deceased, in respect
of pecuniary or non-pecuniary damage, “having regard to the fact that the three
terrorist suspects who were killed had been intending to plant a bomb in
Gibraltar”.
181. In contrast to
McCann and Others, the Court in the present case has made no finding as to
the lawfulness or proportionality of the use of lethal force which killed
Gervaise McKerr, or as to the factual circumstances,
including the activities of the deceased, which led up to the killing, which
issues are pending in the civil proceedings. Accordingly, no award of
compensation falls to be made in this respect. On the other hand, the Court has
found that the national authorities failed in their obligation to carry out a
prompt and effective investigation into the circumstances of the death. The
applicant must thereby have suffered feelings of frustration, distress and
anxiety. The Court considers that the applicant sustained some non-pecuniary
damage which is not sufficiently compensated by the finding of a violation of
the Convention.
182. Making an
assessment on an equitable basis, the Court awards the sum of 10,000 pounds
sterling (GBP).
B. Costs and
expenses
183. The applicant
claimed a total of GBP 36,437.50. This included GBP 17,625 (inclusive of
value-added tax – VAT) for senior counsel, GBP 10,000 for junior counsel, and
solicitors’ fees of GBP 8,812.50 (inclusive of VAT).
184. The Government
submitted that these claims were excessive, noting that the issues in this case
overlapped significantly with the other cases examined at the same time, and
considered that a sum of GBP 15,000 was reasonable.
185. The Court
recalls that this case has involved several rounds of written submissions and an
oral hearing, and may be regarded as factually and legally complex. Nonetheless,
it finds the fees claimed to be on the high side when compared with other cases
from the United Kingdom and is not persuaded that they are reasonable as to
quantum. Having regard to equitable considerations, it awards the sum of GBP
25,000, plus any VAT which may be payable. It has taken into account the sums
received by the applicant by way of legal aid from the Council of Europe.
C. Default interest
186. According to
the information available to the Court, the statutory rate of interest
applicable in the United Kingdom at the date of adoption of the present judgment
is 7.5% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that
there has been a violation of Article 2 of the Convention in respect of failings
in the investigative procedures concerning the death of Gervaise
McKerr;
2. Holds that
there has been no violation of Article 14 of the Convention;
3. Holds that
there has been no violation of Article 13 of the Convention;
4. Holds
(a) that the
respondent State is to pay the applicant, within three months from the
date on which the judgment becomes final according to Article 44 § 2 of the
Convention, the following amounts, plus any value-added tax that may be
chargeable:
(i) GBP 10,000
(ten thousand pounds sterling) in respect of non-pecuniary damage;
(ii) GBP 25,000
(twenty-five thousand pounds sterling) in respect of costs and expenses;
(b) that simple
interest at an annual rate of 7.5% shall be payable from the expiry of the
above-mentioned three months until settlement;
5. Dismisses
the remainder of the applicant’s claims for just satisfaction.
Done in English, and
notified in writing on 4 May 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
S. Dollé J.-P.Costa
Registrar President
On the same date,
the Court delivered judgments in three similar cases. In addition to its
findings in the present case, however, the Court identified certain other
shortcomings, in particular in relation to the role of the DPP and the inquest
procedure. Selected passages from these judgments are reproduced below.
*
* *
Extracts from
Hugh Jordan v. the United Kingdom,
no. 24746/94, 4
May 2001
...
123. The Court does
not doubt the independence of the DPP. However, where the independence of the
police investigation procedure itself is open to doubt and that procedure is not
amenable to public scrutiny, it is of increased importance that the officer who
decides whether or not to prosecute should also present an appearance of
independence in his decision-making. Where no reasons are given in a
controversial incident involving the use of lethal force, this may in itself not
be conducive to public confidence. It also denies the family of the victim
access to information about a matter of crucial importance to them and prevents
any legal challenge of the decision.
124. In this case,
Pearse Jordan was shot and killed while unarmed. It is a situation which, to
borrow the words of the domestic courts, cries out for an explanation. However,
the applicant was given no information as to why the shooting was regarded as
not disclosing a criminal offence or as not meriting the prosecution of the
officer concerned. There was no reasoned decision available to reassure a
concerned public that the rule of law had been respected. This cannot be
regarded as compatible with the requirements of Article 2, unless that
information was forthcoming in some other way. This is not the case, however [Note
by the Registry. Similar passages appear in Kelly and Others v. the
United Kingdom and Shanaghan v. the United Kingdom (nos. 30054/96 and
37715/97, 4 May 2001)].
...
132. The Court
notes, however, that, as with the next-of-kin in McCann and Others, the
applicant was represented by a solicitor and counsel throughout the inquest,
even though legal aid only became available for inquests in Northern Ireland
from 25 July 2000 (see paragraph 67 above). He was also granted legal aid for
the judicial review applications associated with the inquest. Nevertheless, it
appears that the proceedings were effectively adjourned from 19 November 1997 to
1 November 1999, a period of almost two years, while developments were awaited
in a pending case which concerned the availability of legal aid for families at
inquests. While it cannot therefore be said that the applicant was prevented, by
the lack of legal aid, from obtaining any necessary legal assistance at the
inquest, this contributed significantly to the prolongation of the proceedings.
The Court will examine this point in greater detail below, in the context of the
delays in the proceedings (see paragraphs 136-40).
...
136. Finally, the
Court has had regard to the delays in the proceedings. The inquest opened on 4
January 1995, more than twenty-five months after Pearse Jordan’s death. The
coroner had been informed on 29 November 1993 that there would be no
prosecution, but the RUC failed to pass on the case documents until almost a
year later, on 4 November 1994. No explanation has been forthcoming for this
delay.
The inquest has still
not been concluded at the date of this judgment, more than eight years and four
months after the events in issue. There have been a series of adjournments.
– On 16 January 1995
the proceedings were adjourned on application by the applicant, to allow the DPP
to reconsider the decision not to prosecute. That negative decision was
communicated on 14 February 1995. However, the inquest was not scheduled to
resume until 12 June 1995.
– On 2 June 1995
there was a further adjournment on application by the applicant, who brought
judicial review proceedings attempting, inter alia, to gain access to
witness statements. The High Court rejected the application on 11 December 1995,
while his applications for appeal and leave to appeal were dismissed
respectively by the Court of Appeal on 28 June 1996 and the House of Lords on 20
March 1997.
– Before the inquest
was due to resume on 1 December 1997 there was another adjournment pending the
determination of a case which might have affected the availability of legal aid
in inquests. That case was not concluded until 16 March 1999, at which point the
inquest was scheduled to resume on 1 November 1999.
– There was a fourth
adjournment on 13 October 1999, as the applicant applied for the disclosure of
witness statements in the light of the new policy introduced in England and
Wales (see paragraphs 73-74 above). While partial disclosure was granted on or
about 2 February 2000, the applicant is currently pursuing a judicial review
application to obtain full disclosure. The inquest has not yet resumed.
137. The Court
observes that these adjournments were requested, or agreed to, by the applicant.
They related principally to legal challenges to procedural aspects of the
inquest which he considered essential to his ability to participate – in
particular, access to the documents. It may be noted that the judicial review
proceedings which resulted in an adjournment from 2 June 1995 to 20 March 1997
(over one year and nine months) concerned access to witness statements which
have now been disclosed voluntarily due to developments in what is perceived as
desirable practice vis-à-vis a victim’s relatives. Nor can it be regarded
as unreasonable that the applicant agreed to an adjournment to await the issue
in a case which might have resulted in making legal aid available for his
representation. The Court notes that funding for legal representation at
inquests in Northern Ireland has now become possible under an extra-statutory
scheme which recognises, under provisional criteria, that the family of the
deceased may need legal assistance in order to participate effectively in
inquest proceedings and that an effective investigation by the State into the
death may be necessary in the circumstances of the case and the inquest may be
the only way to conduct it (see paragraph 67 above).
138. While it is
therefore the case that the applicant has contributed significantly to the
delays, this has to some extent resulted from the difficulties facing relatives
in participating in inquest procedures (see paragraphs 132 and 134 above,
concerning a lack of legal aid and the non-disclosure of witness statements). It
cannot be regarded as unreasonable that the applicant made use of the legal
remedies available to him to challenge these aspects of the inquest procedure.
The Court observes that the coroner, who was responsible for the conduct of the
proceedings, acceded to these adjournments. The fact that they were requested by
the applicant does not dispense the authorities from ensuring compliance with
the requirement of reasonable expedition (see, mutatis mutandis,
concerning the speed requirement under Article 6 § 1 of the Convention,
Scopelliti v. Italy, judgment of 23 November 1993, Series A no. 278, p. 9, §
25). If long adjournments are regarded as justified in the interests of
procedural fairness to the victim’s family, the question arises whether the
inquest system was, at the relevant time, structurally capable of providing for
both speed and effective access for the deceased’s family.
139. Nor did the
inquest progress with diligence in the periods outside the adjournments. The
Court refers to the delay in commencing the inquest and the delay (on two
occasions of more than eight months) in scheduling the resumption of the inquest
after the adjournments.
140. Having regard
to these considerations, the time taken by this inquest cannot be regarded as
compatible with the State’s obligation under Article 2 of the Convention to
ensure that investigations into suspicious deaths are carried out promptly and
with reasonable expedition.
...
142. The Court finds
that the proceedings for investigating the use of lethal force by the police
officer have been shown in this case to disclose the following shortcomings:
– there was a lack
of independence of the police officers investigating the incident from the
officers implicated in the incident;
– there was a lack
of public scrutiny, and information to the victim’s family, of the reasons for
the decision of the DPP not to prosecute any police officer;
– the police officer
who shot Pearse Jordan could not be made to attend the inquest as a witness;
– the inquest
procedure did not allow for any verdict or findings which could play an
effective role in securing a prosecution in respect of any criminal offence
which might have been disclosed;
– the absence of
legal aid for the representation of the victim’s family and the non-disclosure
of witnesses’ statements prior to their appearance at the inquest prejudiced the
ability of the applicant to participate in the inquest and contributed to long
adjournments in the proceedings;
– the inquest
proceedings did not commence promptly and were not pursued with reasonable
expedition.
...
Extracts from
Kelly and Others v. the United Kingdom,
no. 30054/96, 4
May 2001
...
130. Finally, the
Court has had regard to the delays in the proceedings. The inquest opened on 30
May 1995, more than eight years after the deaths occurred. Although the DPP’s
decision not to prosecute was issued on 22 September 1988, the RUC did not
forward the documents to the coroner until 9 May 1990. No explanation has been
forthcoming for this delay. There were then a series of adjournments before the
inquest opened. Once it opened, it concluded within a matter of days, on 2 June
1995. The adjournments were as follows:
– The inquest was
due to open on 24 September 1990. The coroner agreed to an adjournment on 6
September 1990 at the request of the applicants pending the determination of the
Devine case concerning access of relatives to witness statements. The
Devine case was concluded on 6 February 1992, some sixteen months later.
– The coroner agreed
to an adjournment pending the judicial review proceedings in the
McKerr, Toman and Burns inquests concerning access to
documents used by witnesses to refresh their memories. These concluded on 28 May
1993, fifteen months later.
– The adjournment
continued, pending the court proceedings in the McKerr,
Toman and Burns inquests concerning access to the Stalker and Sampson reports,
which allegedly concerned issues of a shoot-to-kill policy. These concluded on
20 April 1994, eleven months later. The inquest, however, only resumed on 30 May
1995, that is, more than a year later.
131. The Court
observes that these adjournments were requested, or agreed to, by the
applicants. They related principally to legal challenges to procedural aspects
of the inquest which they considered essential to their ability to participate –
in particular as regards their access to the documents. It may be noted that the
judicial review proceedings which resulted in an adjournment from 6 September
1990 to 6 February 1992 (over one year and four months) concerned access to
witness statements which are now being disclosed voluntarily due to developments
in what is perceived as desirable practice vis-à-vis a victim’s
relatives. The second set of judicial proceedings also concluded in favour of
the families, since the courts held that coroners should make available
statements used by witnesses to refresh their memories. Nor can it be regarded
as unreasonable that the applicants agreed to an adjournment to await the
possible disclosure of an independent police inquiry which was alleged to
concern the issue of a deliberate policy by the security forces to use lethal
force.
132. While it is
therefore the case that the applicants contributed significantly to the delay in
the inquest being opened, this has to some extent resulted from the difficulties
facing relatives in participating in inquest procedures (see paragraphs 127-28
above concerning the non-disclosure of witness statements). It cannot be
regarded as unreasonable that the applicants had regard to the legal remedies
being used to challenge these aspects of inquest procedure. The Court observes
that the coroner, who was responsible for the conduct of the proceedings,
acceded to these adjournments. The fact that they were requested by the
applicants does not dispense the authorities from ensuring compliance with the
requirement of reasonable expedition (see, mutatis mutandis, concerning
speed requirements under Article 6 § 1 of the Convention, Scopelliti v. Italy,
judgment of 23 November 1993, Series A no. 278, p. 9, § 25). If long
adjournments are regarded as justified in the interests of procedural fairness
to the deceased’s families, the question arises whether the inquest system was,
at the relevant time, structurally capable of providing for both speed and
effective access for the families concerned.
133. Nor did the
inquest progress with diligence in the periods outside the adjournments. The
Court refers to the delay in commencing the inquest and the delay in scheduling
the resumption of the inquest after the adjournments.
134. Having regard
to these considerations, the time taken by this inquest cannot be regarded as
compatible with the State’s obligation under Article 2 of the Convention to
ensure that investigations into suspicious deaths are carried out promptly and
with reasonable expedition.
...
136. The Court finds
that the proceedings for investigating the use of lethal force by the security
forces have been shown in this case to disclose the following shortcomings:
– there was a lack
of independence of the investigating police officers from the security forces
implicated in the incident;
– there was a lack
of public scrutiny, and information to the victims’ families, of the reasons for
the decision of the DPP not to prosecute any soldier;
– the inquest
procedure did not allow for any verdict or findings which could play an
effective role in securing a prosecution in respect of any criminal offence
which might have been disclosed;
– the soldiers who
shot the deceased could not be made to attend the inquest as witnesses;
– the non-disclosure
of witnesses’ statements prior to their appearance at the inquest prejudiced the
ability of the applicants to participate in the inquest and contributed to long
adjournments in the proceedings;
– the inquest
proceedings did not commence promptly and were not pursued with reasonable
expedition.
...
Extracts from
Shanaghan v. the United Kingdom,
no. 37715/97,
4 May 2001
...
111. In the present
case, special elements arose. There was the acknowledged fact that photographs
identifying Patrick Shanaghan had been lost by the security forces in suspicious
circumstances. There was evidence which alleged that Patrick Shanaghan had been
subjected to threats to his life by police officers before his death and that
police officers had claimed a role in arranging the killing, after it had
occurred. Following an application by the RUC challenging the admissibility of
the evidence by D.C., the High Court ruled that it was not for the inquest to
hear evidence as to threats made against Patrick Shanaghan’s life by police
officers before the incident. The coroner then excluded statements made by
Patrick Shanaghan to his solicitors about the threats made to him by police
officers. The domestic courts appeared to take the view that the only matter of
concern to the inquest was the question of who pulled the trigger, and that, as
it was not disputed that Patrick Shanaghan was the target of loyalist gunmen,
there was no basis for extending the inquiry any further into issues of
collusion. Serious and legitimate concerns of the family and the public were
therefore not addressed by the inquest proceedings.
...
119. Finally, the
Court has had regard to the delays in the proceedings. The inquest opened on 26
March 1996, more than four and a half years after Patrick Shanaghan’s death. The
Government explained that the time taken by the RUC to send the file to the
coroner on 14 January 1994 resulted from their heavy criminal workload. The
Court does not find this a satisfactory explanation for failure to carry out a
transfer of documents in an important judicial procedure. No explanation, beyond
unspecified further enquiries, has been forthcoming for the delay after the
transfer of the file. Once the inquest opened, it proceeded without delay,
concluding within a month.
...
122. The Court finds
that the proceedings for investigating the use of lethal force have been shown
in this case to disclose the following shortcomings:
– no prompt or
effective investigation into the allegations of collusion in the death of
Patrick Shanaghan has been shown to have been carried out;
– there was a lack
of independence of the police officers investigating the incident from the
security-force personnel alleged to have been implicated in collusion with the
loyalist paramilitaries who carried out the shooting;
– there was a lack
of public scrutiny, and information to the victim’s family, of the reasons for
the decision of the DPP not to prosecute in respect of the alleged collusion;
– the scope of
examination of the inquest excluded the concerns of collusion by security-force
personnel in the targeting and killing of Patrick Shanaghan;
– the inquest
procedure did not allow for any verdict or findings which could play an
effective role in securing a prosecution in respect of any criminal offence
which might have been disclosed;
– the non-disclosure
of witnesses’ statements prior to their appearance at the inquest prejudiced the
ability of the applicant to participate in the inquest;
– the inquest
proceedings did not commence promptly. |
