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THIRD
SECTION
DECISION
AS TO
THE ADMISSIBILITY OF
Application no. 28883/95
by Jonathan McKERR
against the
United Kingdom
The European Court of Human Rights (Third
Section), sitting on 4 April 2000 as a Chamber composed of
Mr J.-P. Costa,
President,
Sir
Nicolas Bratza,
Mr L. Loucaides,
Mr P. Kūris,
Mr W. Fuhrmann,
Mrs H.S. Greve,
Mr K. Traja,
judges,
and
Mrs S.
Dollé, Section Registrar,
Having regard to the above application introduced with the European
Commission of Human Rights on
7 March 1995 and
registered on
6 October 1995 ,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by
which the competence to examine the application was transferred to the Court,
Having regard to the Commission’s decision of
8 September 1997 to
communicate the application,
Having regard to the observations submitted by the respondent Government
and the observations in reply submitted by the applicant,
Having regard to the parties’ oral submissions at the hearing on
4 April 2000 ,
Having deliberated, decides as follows:
THE FACTS
The applicant was originally
Mrs Eleanor Creaney, an Irish
national born in 1952, who was the wife of Gervaise McKerr, killed on
11 November 1982
in
Lurgan
,
Northern Ireland
. Mrs Creaney died in November
1996. Jonathan McKerr, the son of the applicant and Gervaise McKerr, is
continuing the application. He is an Irish national born in 1974 and resident in
Lurgan,
Armagh
, and is now regarded as the
applicant.
The applicant is represented
before the Court by Peter Madden of Madden and Finucane, solicitors practising
in
Belfast
.
A.
Particular circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as
follows.
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 were
armed. At
Tullygally Road, East
Lurgan, at least 109 rounds were fired into the car by a
trained five man Royal Ulster Constabulary Home Support Unit (“RUC HMSU”). All
three men were killed.
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
On
11 November 1982 , steps
were taken by Chief Inspector Whirter to preserve the scene of the shootings. 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 conducted
post mortem examinations of the
bodies. Photographs were taken of the shootings and the
post mortem, and maps prepared of the
scene.
As part of the investigation, on
15 November 1982 ,
Detective Chief Inspector Scott interviewed three RUC officers from the five
member 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 and were believed to have set out to
commit a murder. This was pursuant to the instructions of the deputy head of
Special Branch in order to prevent the availability of advance intelligence
becoming public knowledge and hampering the efforts to prevent terrorism.
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.
The results of the RUC investigation were sent to the Director for Public
Prosecutions (“DPP”) to consider whether any prosecution should be brought. The
DPP requested that further enquiries 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.
The DPP decided that charges should be brought against Officers M., B.
and R. (“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.
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 28 witnesses appearing at the trial to give evidence,
while statements from a further 11 witnesses were read out. Over 75 exhibits
were introduced into evidence.
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 following
experiments which he carried out 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 although 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. ...”
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.”
Concerning the Stalker/Sampson investigation
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 Peter Grew
and Roderick Carrol on 12 December 1982.
On 11 April 1984, the DPP exercised his statutory powers under Article
6(3) of the Prosecution of Offences (NI) Order 1972 to request the Chief
Constable of the RUC to conduct further investigations into the three cases. The
Government state 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 to investigate 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.
On 24 May 1984, John Stalker, then Deputy Chief Constable of Greater
Manchester Police, was appointed by the Chief Constable of the RUC to carry out
the investigation, to investigate the three shooting incidents. 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. 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
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 he did, although he refused to attend
an appointment with Mr Stalker.
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.
On 6 August 1986, Colin 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.
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.
On 23 March 1987, Colin Sampson delivered the final section of his RUC
report to Sir John Hermon and the DPP.
On 25 January 1988, Sir Patrick Mayhew, the then Attorney-General, made a
statement in Parliament in which he said,
inter alia, that:
“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.”
In his 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.”
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.”
Concerning the inquests
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 a date unknown, Mr
Curran resigned. The applicant alleges 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 22 August 1984 on the
application of Mrs Creaney’s legal representatives. The Coroner then waited
until after the conclusion of the Stalker/Sampson investigation before
re-opening the inquest on 14 November 1988.
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. 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 alleges 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 tending to
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.
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. 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. His application was refused. On appeal, the Court of Appeal held
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. 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 M., B. and R.
were not compellable.
The inquest proceedings 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.
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). 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.
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.”
The inquest continued until 29 May 1992, in public, before a jury, and
involved the hearing of 23 witnesses over 15 days. Mrs Creaney was represented
by a barrister, who cross-examined the witnesses and made extensive legal
submissions.
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 the applicant’s request, the inquest was
adjourned. On 29 May 1992, 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.
On 21 December 1992, Nicholson J. 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.
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 at 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.
On 16 November 1992, Mr Thorburn wrote to the Chief Constable of 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, Coroner Leckey 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.
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.
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.
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 public interest immunity (“PII”) Certificate.
Meanwhile, on 31 January 1994 the inquest was closed and the jury
discharged. The inquest was re-opened on 22 March 1994. In re-opening 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 ...”
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 interim
Stalker 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) 13 files of
action sheets;
(v) computer
disks;
(vi) photographs and
maps;
(vii) press cuttings, file
and videos of TV programmes;
(viii) interview notes of RUC officers;
(ix) trial
transcripts;
(x) book of
hand-written notes of trials;
(xi) interview indexes
x 3;
(xii) original RUC documents
(ref Ballynerry Road);
(xiii) 15 document files designated B105, 119-129, 134, 137-146, 149 and
153;
(xiv) presentation
documents.
On 20 April 1994, the Chief Constable for 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.
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-Director 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.”
On 5 May 1994, Sir Patrick Mayhew (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 make 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.”
He 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 protect 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 carry out security, intelligence and surveillance work. The
work of all these units requires secrecy if it is 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.
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 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
John Thorburn (Stalker’s deputy) and Mr Shaw (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.
On 11 July 1994, Nicholson J set aside the subpoenas on the grounds that
they were not necessary to the proper purpose of the inquest and 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. ...”
On 8 September 1994 Coroner Leckey 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”.
Concerning civil proceedings
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.
No further steps to proceed with the claims were taken by Mrs Creaney or,
since her death, by the applicant.
B.
Relevant domestic law and practice
Use of lethal force
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 eg. Smith and Hogan on Criminal Law).
Inquests
i.
Statutory provisions and rules
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.
Pursuant to the Coroners Act, every medical practitioner, registrar of
deaths or funeral undertaker who has reason to believe a person died directly or
directly 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 that district are required to
give notice to the Coroner (section 8).
Rules 12 and 13 of the Coroners Rules give power to the Coroner 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.
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.
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.”
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 (eg. 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.
However, in Northern Ireland, the Coroner is under a duty (section 6(2)
of the Prosecution of Offences Order (Northern Ireland) 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.
Legal aid is not available for inquests as they do not involve the
determination of civil liabilities or criminal charges.
The Coroner enjoys the power to summon witnesses who he thinks it
necessary to attend 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 the death may not be compelled to give evidence at
the inquest.
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.
ii.
The scope of inquests
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.”
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.
... I further consider that < previous judgments> make it clear that when
the Broderick 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 JP
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,
Rv. South London Coroner ex parte
Thompson (1982) 126 SJ 625)
C.
Relevant international law and practice
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 Eighth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders.
Paragraph 9 of the UN Force and Firearms Principles provides,
inter alia, that “intentional lethal
use of firearms may only be made when strictly unavoidable in order to protect
life”.
Other relevant provisions provide 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.”
Paragraph 9 of the United Nations Principles on the Effective Prevention
and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on
24 May 1989 by the Economic and Social Council Resolution 1989/65, (“UN
Principles on Extra-Legal Executions”) provides,
inter alia, that:
“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 ...”
Paragraphs 9 to 17 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 recognized
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 ...”
The “Minnesota Protocol” (Model Protocol for a legal investigation of
extra-legal, arbitrary and summary executions, contained in the UN 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 ...”.
COMPLAINTS
1.
The applicant complains that his father, Gervaise McKerr, was deprived of
his life intentionally in contravention of Article 2 § 1 of the Convention. He
submits that the deprivation of life was not “absolutely necessary” nor
proportionate to the aim pursued by the HMSU on 11 November 1982. It is further
submitted that the State has a positive duty to protect the right to life,
including a duty to take appropriate steps to safeguard life, and that this duty
includes the obligation to thoroughly and impartially examine the circumstances
of the deceased’s death in the light of the Convention standard.
2.
The applicant further complains that the use of lethal force by the
security forces in Northern Ireland amounts to discrimination on the grounds of
national origin, or association with a national minority, in contravention of
Article 14 of the Convention. He submits that the failure of domestic
legislation to prevent the use of lethal force unless “absolutely necessary”,
combined with the practice of the security forces in Northern Ireland in using
lethal force, results in a significantly greater threat to the right to life of
members of the Catholic/Nationalist community in Northern Ireland, constituting
discriminatory treatment contrary to Article 14 of the Convention. It is also
submitted that the failure of the legal system to provide an effective remedy
for the victims or relatives of victims of security force killings, a
disproportionate number of whom are from the Catholic/Nationalist community (of
357 killings between 1969 and 1994, there have only been 32 prosecutions and
only six convictions), amounts to discrimination. Further, the inadequacy of the
inquest system itself is claimed to amount to discrimination contrary to Article
14 of the Convention.
3.
Finally, the applicant complains that the shooting of Gervaise McKerr
violates Article 13 read in conjunction with Article 2 of the Convention. He
complains that the criminal prosecution of the three members of the RUC involved
in the killing was not an adequate forum for the investigation of the
circumstances of the deceased’s death. He claims that a lower standard was
applied than that laid down in Article 2 of the Convention and that, had the
Convention standard been applied, the Court could not have resisted finding a
prima facie case of murder and continuing with the prosecution. He claims that
the Attorney-General’s decision not to mount any further prosecutions on the
basis of the Stalker/Sampson Reports has effectively deprived him of any other
legal remedies.
The applicant further submits that the abandonment of the inquest and the
inadequacy of the inquest system in Northern Ireland amounts to a violation of
Article 13. The applicant refers to the limited remit of inquests, the
substantial delays involved, the lack of legal aid for the family of the
deceased, the limited possibility of having witnesses called and examined, the
lack of access to evidence and, in particular, the issuing of public interest
immunity certificates, as demonstrating that the inquest system does not provide
an effective remedy within the meaning of Article 13 of the Convention.
THE LAW
The applicant complains of the death of his father, invoking Articles 2,
13 and 14 of the Convention, which provide as follows:
Article 2 of the
Convention
“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.”
Article 13 of the
Convention
“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.”
Article 14 of the
Convention
“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.”
Article 35 § 1 of the Convention: exhaustion of domestic remedies
The Government submit that the applicant’s complaints concerning the
death of his father are inadmissible for failure to exhaust domestic remedies,
since he has not pursued to a conclusion the civil action which has been
commenced against the relevant authorities alleging unlawful killing. They point
out that the determination of applicant’s central complaint - whether or not
Gervaise McKerr was killed in circumstances falling outside the exceptions to
the right to life in the second paragraph of Article 2 - will depend on an
assessment of all the facts of the case and these circumstances, in particular
the necessity and proportionality of the use of force, are also at the heart of
the civil proceedings launched by the applicant. If the allegations in those
proceedings are well-founded, domestic law will provide the applicant with an
effective and adequate remedy - a judgment dealing with the facts of the case
and the liability of the authorities and damages, if appropriate.
The applicant argues that civil proceedings taken at the initiative of
relatives are plainly inadequate to remedy his complaint under the procedural
aspect of Article 2, which, he submits, places the responsibility on the State
to furnish an effective investigation into the killing of his father. They are
also inadequate and ineffective in respect of his substantive complaints under
Article 2. He submits that the purpose of civil proceedings is to obtain damages
for the family of the deceased and that this is not an adequate remedy for a
violation of the right to life. The death of his father was also not an isolated
occurrence but part of an administrative practice of the use of lethal force by
the security forces which is condoned and encouraged by the respondent
Government.
The applicant also refers to the standard of domestic law which applies a
test of reasonableness instead of the Convention test of “absolutely necessary”.
He submits that in practice the domestic courts concentrate their examination on
the state of mind of the user of lethal force without giving consideration to
issues of training and the control and planning of operations, which are
relevant to the proportionality of the use of force under the Convention.
The Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention obliges applicants to use first
the remedies that are normally available and sufficient in the domestic legal
system to enable them to obtain redress for the breaches alleged. The existence
of the remedies must be sufficiently certain, in practice as well as in theory,
failing which they will lack the requisite accessibility and effectiveness.
Article 35 § 1 also requires that the complaints intended to be brought
subsequently before the Court should have been made to the appropriate domestic
body, at least in substance and in compliance with the formal requirements laid
down in domestic law, but not that recourse should be had to remedies which are
inadequate or ineffective (see Aksoy v.
Turkey, no. 21987/93, §§ 51-52, ECHR 1996-VI, and
Akdivar and Others v. Turkey, no.
21893/93, §§ 65-67, ECHR 1996-IV).
The Court emphasises that the application of the rule of exhaustion of
domestic remedies must make due allowance for the fact that it is being applied
in the context of machinery for the protection of human rights that the
Contracting States have agreed to set up. Accordingly, it has recognised that
Article 35 § 1 must be applied with some degree of flexibility and without
excessive formalism. It has further recognised that the rule of exhaustion is
neither absolute nor capable of being applied automatically; for the purposes of
reviewing whether it has been observed, it is essential to have regard to the
circumstances of the individual case. This means, in particular, that the Court
must take realistic account not only of the existence of formal remedies in the
legal system of the Contracting State concerned but also of the general context
in which they operate, as well as the personal circumstances of the applicant.
It must then examine whether, in all the circumstances of the case, the
applicant did everything that could reasonably be expected of him or her to
exhaust domestic remedies (see the aforementioned
Akdivar and Others judgment § 69, and
the Aksoy judgment §§ 53 and 54).
In the present case, the Court observes that the facts surrounding the
killing of the applicant’s father are pending examination in the civil action
instituted by his mother and that consequently there have been no findings of
fact in relation to the allegations raised in those proceedings. It recalls that
the inquest terminated without reaching any conclusions. Further, while there
was a criminal prosecution in the case, it ended in acquittals before any
defence witnesses were called and
before alleged evidence of a “shoot to kill” policy, obstruction of justice and
deliberate ineptness in the RUC investigation came to light. The Court is aware
of the subsidiary nature of its role and that it must be cautious in taking on
the role of a first instance tribunal of fact, where this is not rendered
unavoidable by the circumstances of a particular case. Indeed, the object and
purpose underlying the Convention, as set out in Article 1 - that rights and
freedoms should be secured by the Contracting State within its jurisdiction -
would be undermined if applicants were not encouraged to pursue the means at
their disposal within the State to obtain available redress.
Nonetheless, the issues raised in the present case not only raise matters
of grave concern but involve important questions of the interpretation and
application of the fundamental guarantee of the right to life, in both its
substantive and procedural aspects. As regards the procedural requirement that
the State carry out an effective investigation into deaths caused by its agents
(see McCann and Others v. the United
Kingdom, no. 18984/91, § 161, ECHR 1995-III), the parties differ as to the
scope of the obligation and, in particular, as to whether civil proceedings are
of any relevance, depending as they do on the initiative of the deceased’s
relatives who have to establish their claims to a certain standard of proof. It
is also in issue whether the inquest procedures in Northern Ireland are capable
of satisfying the requirements of the procedural obligation, having regard,
inter alia, to the limited scope of
the enquiry into the facts immediately surrounding the death and the allegedly
endemic delays. These are matters which are closely related to the merits of the
complaints.
Similarly, the parties’ arguments as to whether civil proceedings may
provide adequate redress for the allegedly unjustifiable use of force in killing
Gervaise McKerr overlap with issues under Article 2 as to the compatibility of
domestic law and the extent to which a criminal prosecution may be regarded as a
requirement for compliance with a State’s obligation to protect the right to
life.
Accordingly, the Court does not consider it appropriate to examine these
issues in the context of the exhaustion of domestic remedies, but joins them to
the merits.
The substance of the application
The Government do not accept the applicant’s claims under Article 2 that
his father was killed by any excessive or unjustified use of force or that
domestic law in any way fails to comply with the requirements of this provision.
They argue that the procedural aspect of Article 2 is satisfied by the
combination of procedures available in Northern Ireland, namely, the police
investigation, which is supervised by the Independent Commission for Police
Complaints and by the Director of Public Prosecutions, inquest proceedings and
civil proceedings. These secure the fundamental purpose of the procedural
obligation in that they provide effective accountability for the use of lethal
force by State agents. This does not require that a criminal prosecution be
brought but that the investigation is capable of leading to a prosecution, which
is the case in this application. They also point out that each case must be
judged on its facts since the effectiveness of any procedural ingredient may
vary with the circumstances. In the present case, they submit that together the
available procedures provide the necessary effectiveness, independence and
transparency by way of safeguards against abuse.
The Government submit that the complaints raised under Article 13 are
premature for the same reasons that they argue that the application should be
rejected for non-exhaustion, namely, that the combination of available
procedures provide effective remedies.
As concerns allegations of discrimination under Article 14, they submit
that there is no evidence that any of the deaths which occurred in Northern
Ireland were analogous or that they disclose any difference in treatment. Bald
statistics (the accuracy of which is not accepted) are not enough to establish
broad allegations of discrimination against Catholics or nationalists. Criminal
conduct on the part of the security forces is not tolerated, while the extent of
terrorist activity in Northern Ireland meant, regrettably but inevitably that
there were instances of the justified use of lethal force.
The applicant submits that the death of his father was the result of
unnecessary and disproportionate use of force by RUC officers and that his
father was the victim of a “shoot to kill” policy operated by the United Kingdom
Government in Northern Ireland. He refers,
inter alia, to reports by Amnesty
International and the Human Rights Watch, as well as the statements made by John
Stalker, a senior policeman, who carried out an investigation into allegations
of such a policy. He submits that there has been no effective official
investigation carried out into the killing, relying on the international
standards set out in the Minnesota Protocol. He argues that the RUC
investigation was inadequate and flawed by its lack of independence and lack of
publicity. The DPP’s own role is limited by the RUC investigation and he does
not make public his reasons for not prosecuting. Even though there was an
independent police enquiry in this case, the results were not made public
either. The inquest was flawed by the delays, the limited scope of the enquiry,
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 cannot rely on
civil proceedings either, as this depends on the initiative of the deceased’s
family.
Under Article 13, the applicant refers to his arguments concerning the
procedural aspect of Article 2 and, under Article 14, to the large numbers of
killings of Catholics by security forces and police compared with a
disproportionately low number of prosecutions and convictions.
The Northern Ireland Human Rights Commission, acting as intervenor, made
submissions outlining the relevant international standards concerning the right
to life (eg. the Inter-American Court’s case-law and findings of the UN Human
Rights Committee). They submit that the State must carry out an effective
official investigation when an agent of the State is involved or implicated in
the use of lethal force. Internal accountability procedures must satisfy the
standards of effectiveness, independence, transparency and promptness, and
facilitate punitive sanction. It is however, in their view, not sufficient for a
State to declare that while certain mechanisms are inadequate, a number of such
mechanisms regarded cumulatively can provide the necessary protection. They
submit that the investigative mechanisms relied on this case, singly or
combined, fail to do so. They refer,
inter alia, to the problematic role of the RUC in Northern Ireland, the
serious deficiencies in mechanisms of police accountability, the limited scope
of and delays in inquests, and the lack of compellability of the members of the
security forces who have used lethal force to appear at inquests. They urge 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.
The Court finds that complex issues of fact and law arise under the
Convention which should be examined on the merits. The application is not
manifestly ill-founded within the meaning of Article 35 § 3 of the Convention
and no other grounds for declaring it inadmissible have been established.
For these reasons, the Court, by a majority,
DECLARES THE
APPLICATION ADMISSIBLE, without prejudging the
merits of the case.
S. Dollé
J.-P. Costa
Registrar President
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