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 inte