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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 34651/04
by Michael McGRATH
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 March 2007 as
a Chamber composed of:
Mr
J. Casadevall,
President,
Sir Nicolas
Bratza,
Mr
G. Bonello,
Mr
K. Traja,
Mr
S. Pavlovschi,
Mr
J. Šikuta,
Mrs
P. Hirvelä, judges,
and Mrs F. Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 September 2004,
Having regard to the observations submitted by the respondent Government and the
observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Michael McGrath, is an Irish citizen, who was born in 1922 and
lives in Armagh. He is represented before the Court by Mr R. MacRitchie of
Madden & Finucane, solicitors practising in Belfast. The Government are
represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth
Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as
follows.
1. The attack on the applicant
At about 22.40 hours, shortly after closing time, on 6 June 1976, a police
officer in the Royal Ulster Constabulary (“RUC”) drove a car, stolen by RUC
Reserve Constable Laurence McClure, up to the Rock Bar, a public house. The
applicant was leaving the bar at that time. He was shot twice in the stomach by
McClure, who then placed a 10lb gelignite bomb against the door of the pub. The
detonator exploded but the bomb failed to explode. At the later trial a reserve
police constable William McCaughey stated that shots were fired by his
companions at the injured man on the ground and then he fired a number of shots
through the window of the bar. Bullet strike marks were later found around the
darts board inside the bar, where there had been seventeen people. No-one else
was physically injured.
The applicant was taken to hospital in an ambulance and police attended the
scene, sealing off the area while an army technical officer examined the
explosive device and ensured that it was in a safe condition. A Scene of Crime
Officer examined the scene, took possession of material associated with the bomb
and a gun recovered from a burnt out car found approximately one mile away,
which police linked to the attack. Photographs of the bar were taken and maps
prepared.
2. The investigations concerning McCaughey and Weir
The investigation did not close and became active again in 1978, when a Catholic
priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to
use him as a hostage vis-à-vis the IRA. In the course of the
investigation, the police arrested McCaughey, who, in the course of questioning,
revealed his part in the abduction of the priest and in a variety of other
loyalist paramilitary incident. McCaughey made allegations incriminating himself
and police officer McClure in respect of the Rock Bar attack. McClure was
arrested and admitted involvement. Two further serving police officers, Ian
Mitchell and David Wilson, also admitted involvement in, or prior knowledge of
the attack on the bar. McCaughey admitted firing the shot which wounded the
applicant.
The applicant was aware that charges were pending against four police officers.
He had been contacted by the police in April 1980 and summoned to appear in
Belfast Crown Court on 23 April 1980. He was subsequently advised of various
date changes and then that the case was postponed and that he would be
contacted. In fact the hearing took place on 30 June 1980. The applicant had not
been informed and learned about the outcome on the radio.
Three men, McCaughey, McClure and Mitchell faced charges of attempted murder of
the applicant, wounding the applicant with intent contrary to section 18 of the
Offences against the Persons Act 1961, attempted murder of the persons inside
the bar, causing an explosion contrary to section 2 of the Explosives Substances
Act 1883, possession of explosive substances with intent to endanger life or
cause serious injury and possession of firearms and ammunition with intent. The
three officers pleaded not guilty to the charges of attempted murder; McClure
and Mitchell pleaded not guilty to wounding the applicant. The Director of
Public Prosecutions (“the DPP”) entered a nolle prosequi in respect of
those charges which accordingly were not proceeded with. No reasons were given
for this decision. The only person facing a charge concerning the applicant was
McCaughey, who received a term of seven years for wounding him. McClure was
sentenced to two years’ imprisonment for causing an explosion, possession of an
explosive substance with intent and possession of firearms and ammunition with
intent, all sentences suspended for three years. Another RUC officer, David
Wilson, was charged with withholding information contrary to section 5(1) of the
Criminal Law (Northern Ireland) Act 1967, based on the fact that he had been
aware of the attack beforehand and had not taken any steps to prevent it.
With the exception of McCaughey, the other officers received suspended prison
terms. In sentencing, Lord Lowry stated inter alia:
“... It does not seem realistic to believe that after all that they have endured
– some with their careers in ruins, others with their careers in jeopardy- that
they require much by way of deterrent or by way of reform, and no proper
sentence which I pass will make an impression on terrorists while other members
of the police force are no doubt already embarrassed, sufficiently embarrassed
and shocked by what has happened in these cases and been seen to happen to their
colleagues. ... I must remember that whatever sentence is just it would follow
that it would be imposed on a different and lower scale from that appropriate to
terrorists, no matter whichever side, whose aim is to achieve their political
ends by violence and to attack the very fabric of society.”
It had been advanced by the defence and accepted by the trial judge that
McCaughey had only aimed to shoot the applicant in the legs and had done so.
McClure had also been facing charges in relation to his involvement in the
attack on Donnelly’s Bar, Silverbridge, in 1975 in which three people had been
killed (see application no. 32457/04, Brecknell v. the United Kingdom).
These charges were later dropped.
In the course of the investigation in 1978, McCaughey made revelations giving
rise investigations in eleven specific cases, some of which were linked in terms
of the identities of those involved, the modus operandi or by virtue of the
ballistic examinations of weapons used. Nine suspects were arrested in total,
including five police officers and all were eventually charged with offences.
One of those implicated was a police officer John Weir who was named as having
been involved in the murder of a shopkeeper called Strathearn in Ahoghill in
April 1977: he was convicted for that murder in June 1980 and sentenced to life
imprisonment. The Government stated that both McCaughey and Weir refused to name
the two loyalist paramilitaries also involved with them in the murder unless
they received immunity from prosecution. The police and prosecuting authority
took the decision prior to the trial not to enter into any process of bargaining
with Weir and McCaughey. While both were approached by the police after their
convictions to see if at that stage they would give evidence against the
loyalist paramilitaries, each again refused to do so unless there was something
in it for themselves. The Government stated that during the period in which Weir
was detained he was interviewed on a large number of occasions. At no time did
he implicate himself or others in any offence other than the Strathearn murder.
3. The Weir allegations and the response of the authorities
On 1 February 1993 John Weir was released from prison on licence. Some time
later, he made a statement to a journalist alleging RUC and Ulster Defence
Regiment ("UDR") collusion with loyalist paramilitaries from the Portadown area
in the mid-1970s. This statement was published in the Sunday Times newspaper in
March 1999. It was obtained by the Patrick Finucane Centre, a human rights
non-governmental organisation in Derry (“the Centre”).
John Weir’s statement made detailed allegations about security force collusion
with loyalist paramilitaries in a series of incidents. He alleged inter alia
that RUC Reserve Constable Laurence McClure had told him that the murder of the
Reavey family members was carried out by Robert McConnell, a member of the UDR,
Laurence McClure, Johnny Mitchell, another Reserve Constable in the RUC and
McClure’s brother who was not a member of the security forces. The statement
also made links between this incident and other attacks allegedly carried out by
members of the security forces, both RUC and UDR, and loyalist paramilitaries.
This group used the farmhouse in Glennane owned by James Mitchell, a RUC
reservist, as a base from which to carry out attacks on Catholics and
nationalists. Other attacks allegedly included the murder of Colm McCartney and
Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no.
34575/04); the attack on Donnelly’s Bar in which Trevor Brecknell, Michael
Donnelly and Patrick Donnelly were killed (see application no. 32457/04); and
the murder of Joseph, Barry and Declan O’Dowd and wounding of Barney O’Dowd (see
application no. 34622/04). Weir also linked these attacks to the Dublin and
Monaghan bombings in which 33 people were killed in the Republic of Ireland.
On or about 10 June 1999, RTE, an Irish television channel, broadcast a
television programme that contained allegations of security force involvement in
a number of deaths, including that of Trevor Brecknell. Weir made allegations on
that programme that members of the RUC and UDR were directly involved in the
attack on Donnelly’s Bar. A BBC Spotlight programme produced a similar
documentary dealing with these allegations.
These allegations attracted considerable attention on both sides of the Irish
border and became the subject of police investigation in both jurisdictions. The
Government stated that the police investigation in Northern Ireland was focussed
on determining whether Weir’s allegations should be assessed as sufficiently
credible to require a full investigation. They obtained from the journalist an
edited transcript of the interview with Weir. While his whereabouts were unknown
to the RUC, Weir met with senior Irish police officers at the Irish Embassy on
15 April 1999. A copy of his statement was provided by the Garda to the RUC,
along with a further statement made by Weir to another journalist dated 3
February 1999. The police analysed the available materials and sought to
identify the personalities to be interviewed. It became apparent that some had
died and that others, living abroad, could not be traced. A series of seven
interviews were conducted, under cautions, between July and December 2001, of
those individuals central to Weir’s account who could be traced. No charges were
preferred. The interviews followed the format of Weir’s allegations being put to
the interviewee for his or her response. The predominant response was denial of
any involvement and claims that Weir had been untruthful. No admissions were
made by any interviewee. Interviews were also conducted with less central
personalities and with police officers involved in interviewing Weir in 1978.
The latter stated that Weir had not mentioned the matters now being alleged.
Meetings were held regularly with RUC counterparts in the Republic of Ireland.
The RUC co-operated also with the judicial inquiry established in the Republic
of Ireland into the Dublin and Monaghan bombings (see the description of the
inquiry in the case of Brecknell referred to above). Amongst matters
about which the RUC team provided information to the inquiry was ballistics
information which linked some of the weapons used to more than one incident. In
February 2000 a substantial report was compiled by the RUC for the Garda dealing
with Weir’s allegations. It profiled Weir and dealt inter alia with a
description of the 1978 investigation into McCaughey, Weir and others. It
concluded that the investigation would continue but that his credibility was in
doubt. According to the Government, despite inquiries being conducted, Weir’s
whereabouts could not be traced. This report was not disclosed as the
investigation was continuing. An internal RUC report dated 27 February 2001
concluded that it would be necessary to interview Weir before any view could be
finalised in respect of the credibility of his allegations: such interview was
not possible as his whereabouts were not known. The report noted the absence of
any previous mention of the allegations before 1999 and that much of what he
said was hearsay and speculation. Enquiries made of the British Embassy in
Nigeria (where he had a known address) and the criminal intelligence service and
others failed to locate Weir. Contact was made with the Garda and the
secretariat of the Inquiry into the Dublin and Monaghan bombings without
positive result.
The Serious Crime Review Team (“SCRT”) was established in March 2004, with
responsibilities including the review of all historical murders by way of case
assessment for evidential and investigative opportunities.
Unlike the other case (Brecknell, Reavey, O’Dowd and McCartney, cited above),
the Rock Bar case was not referred to the SCRT. This was because it was not a
murder case and there had been four convictions. Nonetheless because of
connections with other cases, the case was also referred to the Historical
Enquiry Team (HET). The HET director of Investigations, Detective Chief
Superintendent James of the London Metropolitan Police Force, took over personal
supervision of the investigation which has progressed through the first three of
five stages of the HET process (collection of all relevant material; assessment
of the investigations to date; review of evidence, with intelligence and open
and non-police sources, together with a meeting with the families of the victims
of the attack). Detective Chief Superintendent James met the applicant with the
person who owned the bar at the time. As a number of investigative opportunities
have been identified and are to be followed up, the case will continue to be
processed by HET, which have been put in touch with Weir by the Centre. The
Government submitted that if any evidence of police involvement in the murders
were found, the Office of the Police Ombudsman for Northern Ireland would become
involved.
The Government stated that the HET would continue to process the case and follow
up opportunities.
4. Application for judicial review concerning the inadequacy of the
investigation
See Brecknell, cited above.
5. Reports of the Independent Commissions of Inquiry (Republic of Ireland)
See Brecknell, cited above.
COMPLAINTS
The applicant complained under Article 2 of the Convention that the United
Kingdom had failed to provide an effective official investigation into the
allegations made in 1999 by John Weir alleging security force involvement in the
attack on the Rock Bar in which he was seriously injured and linking that attack
with other acts of security force collusion with loyalist paramilitaries. The
investigation conducted by the RUC/PSNI lacked the requisite degree of
independence from those implicated in the events; the investigation into the
credibility of John Weir’s allegations was not effective in that it was not
capable of identifying and punishing those responsible; there was unwarranted
delay in progressing the investigation and it was not pursued with reasonable
expedition; the investigation was not open to public scrutiny and the relatives
affected by the credibility or otherwise of John Weir’s allegations were not
given sufficient access to the investigation, including access to material, to
enable them to protect their legitimate interests.
The applicant also complained under Article 13 of the Convention due to the lack
of any effective remedy, submitting that the House of Lords decision of 11 March
2004 in the case of McKerr v. the Secretary of State for Northern Ireland
removed any domestic remedy for his allegations that the current investigation
breached Article 2 of the Convention.
THE LAW
1. The applicant complained of a lack of proper investigation into the
allegations made by Weir, invoking Articles 2 and 13 of the Convention which
provides as relevant:
Article 2:
“1. Everyone’s right to life shall be protected by law. ..”
Article 13:
“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.”
A. The six month rule (Article 35 § 1 of the Convention)
The Court notes that the Government and applicant’s submissions on this point
are identical to those raised in the Brecknell case cited above. For the
same reasons, it rejects the preliminary objection.
B. The substance of the case
The parties’ submissions repeat those made in the Brecknell case, cited
above, save that the Government took the view that shooting in this case
involved the use of life-threatening force in the use of a firearm against the
applicant gave rise to procedural obligations under Article 2, or more
relevantly, Article 3 at the time. The applicant also alleged that the way in
which the prosecutions against McClure were handled led to his only receiving a
suspended sentence even though he had been implicated in three attacks that had
caused the deaths of six persons; he further pointed to the way in which the
trial judge had appeared to accept that McCaughey had only intended to shoot him
in the legs, whereas in fact the applicant had been shot from close range in the
stomach and there had been no question of the attacker aiming at his legs.
Having regard to the applicant’s complaints and the parties’ submissions, the
Court finds that serious questions of fact and law arise, the determination of
which should depend on an examination of the merits. The application cannot be
regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. No other grounds for declaring it inadmissible have been
established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the
case.
Fatoş Aracı
Josep Casadevall
Deputy Registrar
President
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