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FOURTH SECTION
CASE
OF MCGRATH v. THE UNITED KINGDOM
(Application no. 34651/04)
JUDGMENT
STRASBOURG
27 November 2007
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of McGrath v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting 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 Mr T.L.
Early, Section Registrar,
Having deliberated in private on 6 November 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34651/04) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Irish national, Mr Michael McGrath (“the
applicant”), on 10 September 2004.
2. The applicant was represented by Madden & Finucane, solicitors practising in
Belfast. The United Kingdom Government (“the Government”) were represented by
their Agent, Mr J. Grainger of the Foreign and Commonwealth Office, London.
3. The applicant alleged that there had been no adequate investigation into
allegations of collusion and/or involvement by security forces in his being
seriously injured, nor any effective remedy for the same. He invoked Articles 2
and 13 of the Convention.
4. By a decision of 6 March 2007 the Court declared the application admissible.
5. The applicant and the Government each filed further written observations
(Rule 59 § 1), to which they each responded with further written comments (Rule
59 § 1). The Chamber decided, after consulting the parties, that no hearing on
the merits was required (Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1922 and lives in Granemore, County Armagh.
A. The attack on the applicant and the initial investigation
7. At about 10.40 p.m., 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.
8. 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.
B. The investigations concerning McCaughey and Weir
9. 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 incidents. 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.
10. 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.
11. 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.
12. 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.”
13. 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.
14. 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.
15. In the course of the investigation in 1978, McCaughey made revelations
giving rise to 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.
16. 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.
C. The Weir allegations and the response of the authorities
17. On 1 February 1993 John Weir was released from prison on licence. In
January 1999, 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”).
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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). As a number of investigative opportunities were identified and
to be followed up, the case was to continue to be processed by HET, which had
been put in touch with Weir by the Centre. The Government submitted that if any
evidence of police involvement in the murders was found, the Office of the
Police Ombudsman for Northern Ireland would then become involved. The Government
have provided recent information that Weir finally agreed to meet with the HET
in Dublin; he refused, however, to make a written statement or to give evidence
in court.
There has been contact between the police and the applicant, as well as with
the Centre acting on behalf of a number of concerned families. In particular,
there were meetings in September 2002 with Detective Chief Inspector Paterson,
and a meeting with the Chief Constable in June and August 2004; in May 2006,
Detective Chief Superintendent James met the applicant together with the person
who owned the bar at the time; and there has also been extensive correspondence
with the families or their representatives.
D. Application for judicial review concerning the inadequacy of the
investigation
See Brecknell,
cited above (§§ 39-41).
E. Reports of the Independent Commissions of Inquiry (Republic of Ireland)
See Brecknell,
cited above (§§ 42-49).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
24. The applicant complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of the shooting in which
he was seriously injured after allegations were made in 1999 by John Weir as to
RUC involvement, invoking 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 parties' submissions
25. The parties' submissions essentially repeat those made in the
Brecknell case
(cited above, §§ 54-59, 60-64).
B. The Court's assessment
26. The Court refers to its statement of principles and analysis as set out in
Brecknell
(cited above, §§ 65-81). For the same reasons it concludes that the
investigative response to Weir's allegations lacked the requisite independence
in its early stages when under the control of the RUC. There has been, in that
respect alone, a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
27. In view of its findings above, the Court finds that it is not necessary to
examine separately the complaint under this Article.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28. 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
29. The applicant claimed non-pecuniary damage for the suffering and distress
caused by the State's failure to conduct an effective official investigation
into the circumstances of the shooting.
30. The Government submitted that even if there was a breach of the procedural
obligation it would not be appropriate to apply the same scale as in cases of
procedural breaches in the immediate aftermath of a use of lethal force. They
considered a finding of a violation should be held in itself to constitute just
satisfaction. Alternatively, any award should be modest.
31. The Court has found that the national authorities failed in their
obligation to provide a properly independent investigative response in the
initial stages following the allegations made by John Weir. In the
circumstances, it considers that the applicant sustained some non-pecuniary
damage which is not sufficiently compensated by the finding of a violation of
the Convention. Making an assessment on an equitable basis, the Court awards the
sum of EUR 5,000.
B. Costs and expenses
32. The applicant claimed GBP 10,298.29 for solicitors' costs, inclusive of
value added tax (VAT) for this application.
33. The Government submitted that the overall solicitors' charging rate (with
an uplift of 50% for care and conduct) was excessive, and half the amount was
appropriate. The overall hours claimed were also excessive given that similar
issues arose in the four other cases considered at the same time. They proposed
no more than GBP 20,000 for solicitors' costs in total for all four cases
together.
34. The Court recalls that only legal costs and expenses found to have been
actually and necessarily incurred and which are reasonable as to quantum are
recoverable under Article 41 of the Convention (see, among other authorities,
Nikolova v. Bulgaria
[GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just
satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX).
35. The Court has already awarded EUR 29,000 for solicitors' costs in the
Brecknell case
(§ 92). Having regard to the fact that only the initial presentation of facts in
this case required separate treatment from the lead application, it awards the
applicant EUR 5,000, which figure is inclusive of VAT.
C. Default interest
36. The Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to which should
be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that
there has been a violation of Article 2 of the Convention due to the lack of
independence of the RUC during the initial stages of the investigation begun in
1999;
2. Holds that
it is not necessary to examine separately the applicant's complaint under
Article 13 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from
the date on which the judgment becomes final in accordance with Article 44 § 2
of the Convention, the following amounts to be converted into pounds sterling at
the rate applicable at the date of settlement;
(i) in respect of non-pecuniary damage, EUR 5,000
(five thousand euros);
(ii) in respect of costs and expenses, EUR 5,000
(five thousand euros);
(b) that from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal to the
marginal lending rate of the European Central Bank during the default period
plus three percentage points;
4. Dismisses
the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 27 November 2007, pursuant to Rule
77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
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