In the case of Hugh Jordan v. the United
Kingdom,
The European Court of Human Rights
(Third Section), sitting as a Chamber composed of:
Mr
J.-P. Costa,
President,
Mr
W. Fuhrmann,
Mr
L. Loucaides,
Mrs F.
Tulkens,
Mr
K. Jungwiert,
Sir
Nicolas Bratza,
Mr
K. Traja,
judges,
and Mrs S. Dollé,
Section Registrar,
Having deliberated in private on 4 April
2000 and on 11 April 2001,
Delivers the following judgment, which
was adopted on the last‑mentioned date:
PROCEDURE
1. The
case originated in an application (no. 24746/94)
against the United Kingdom lodged with the European
Commission of Human Rights (“the Commission”) under
former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by an Irish and British national,
Mr Hugh Jordan (“the applicant”), on 13 May 1994.
2. The
applicant, who had been granted legal aid, was represented
by Mr K. Winters and Mr S. Treacy, lawyers practising
in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr C.
Whomersley of the Foreign and Commonwealth Office.
3. The
applicant alleged that his son Pearse Jordan had been
unjustifiably shot and killed by a police officer and that
there had been no effective investigation into, or redress
for, his death. He invoked Articles 2, 6, 13 and 14 of the
Convention.
4. The
application was transmitted to the Court on 1 November
1998, when Protocol No. 11 to the Convention came
into force (Article 5 § 2 of Protocol No. 11).
5. The
application was allocated to the Third Section of the
Court (Rule 52 § 1 of the Rules of Court).
Within that Section, the Chamber that would consider the
case (Article 27 § 1 of the Convention)
was constituted as provided in Rule 26 § 1
of the Rules of Court.
6. Having
consulted the parties, the President of the Chamber
decided that in the interests of the proper administration
of justice, the proceedings in the present case should be
conducted simultaneously with those in the cases of McKerr
v. the United Kingdom, no. 28883/95, Kelly
and Others v. the United Kingdom, no. 30054/96
and Shanaghan v.
the United Kingdom, no. 37715/97 (see judgments of the
same date).
7. Third-party
comments were received from the Northern Ireland Human
Rights Commission on 23 March 2000, which had been given
leave by the President to intervene in the written
procedure (Article 36 § 2 of the
Convention and Rule 61 § 3).
8. A
hearing took place in public in the Human Rights Building
on 4 April 2000.
There appeared before the Court:
(a) for
the Government
Mr C.
Whomersley,
Agent,
Mr R.
Weatherup, QC,
Mr P.
Sales,
Mr J.
Eadie,
Mr N.
Lavender,
Counsel,
Mr O.
Paulin,
Ms S.
Mcclelland,
Ms K.
Pearson,
Mr D.
Mcilroy,
Ms S.
Broderick,
Ms L.
Mcalpine,
Ms J.
Donnelly,
Mr T.
Taylor,
Advisers;
(b) for
the applicant
Mr S.
Treacy, QC,
Ms K.
Quinliven,
Counsel,
Ms P.
Coyle,
Solicitor.
The Court heard addresses by Mr
Weatherup and Mr Treacy.
9. By
a decision of 4 April 2000, the Chamber declared the
application admissible.
10. The
applicant and the Government each filed observations on
the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF
THE CASE
11. The
facts of the case, in particular concerning what happened
when Pearse Jordan was shot on 25 November 1992, are in
dispute between the parties.
A. Events relating to the death
of Pearse Jordan
12. On
25 November 1992, the applicant’s son, Pearse Jordan,
aged 22, was shot and killed in Belfast by an officer of
the Royal Ulster Constabulary (the RUC), later identified
as Sergeant A.
13.
The official statement issued by the RUC to the
media indicated that an RUC unit had pursued a car on the
Falls Road and brought it to a halt. On stopping the car,
the officers had fired several shots at the driver,
fatally wounding him a short distance from where his car
had been abandoned. No guns, ammunition, explosives, masks
or gloves had been found in the car and the driver, Pearse
Jordan, had been unarmed.
14. The
post mortem
report found two entry wounds in Pearse Jordan’s back
and one in the back of the left arm, and noted a bruise on
the face and shin. It concluded that he had been struck by
three bullets which had come from behind and to the left.
There was nothing to indicate the range.
15. The
shooting was witnessed by four civilians, who on 26
November 1992 made statements to the Committee for the
Administration of Justice (CAJ), an independent
non-governmental human rights organisation based in
Belfast. The four witnesses gave the following account of
the shooting, which is not accepted by the Government.
16. The
four civilians were walking together along the Falls Road
and passed Andersontown RUC station at 5 p.m.
approximately. They noticed two unmarked police cars
parked with their headlights dimmed, each containing three
RUC officers: one car was red and the second dark
blue/green.
As they proceeded along the road, they
heard a crash behind them and turned to see on the
opposite side of the road the red police car pulling
alongside a car (Pearse Jordan’s) and ramming it up onto
the footpath. The red police car came to a halt in front
of the car while the dark blue/green police car pulled up
behind hitting it in the rear. The four civilians stopped
and had an unobstructed view across the road. Pearse
Jordan emerged from the immobilised car, and appeared
shaken. He staggered across the road towards the four men
followed by four police officers. As Pearse Jordan reached
the white line in the centre of the road, an officer about
12 feet away fired a number of shots. The civilians heard
no warning shout or challenge given by any of the officers
and saw nothing in Pearse Jordan’s hands or anything
threatening in his actions. Some of the shots struck
Pearse Jordan. He staggered a little further then turned
to face the police who, when they caught up with him,
verbally abused him and pushed his face into the ground
where he was kicked and searched. The police carried out a
search of the car.
The four witnesses followed the
ambulance which took Pearse Jordan to hospital where they
stated that they were subjected to hostile and threatening
remarks by members of the security forces.
17. According
to the applicant, prior to the release of the official RUC
statement (see paragraph 13 above), there were a number of
unofficial reports widely circulated in the media to the
effect that gloves, masks, guns and bombs had been found
in the car, and one report to the effect that Pearse
Jordan was a former Republican prisoner who had been
charged in 1991 with possession of explosives. This
information was not correct. Pearse Jordan did however
receive an IRA funeral and, in the Republican News, he was
described as a Volunteer of the Belfast Brigade of the IRA
and it was said that he had died on active service.
18. An
official RUC statement stated that a deputy superintendent
of the RUC from outside Belfast would investigate the
shooting. In a later statement, it was announced that the
Independent Commission for Police Complaints (the ICPC)
would supervise the RUC investigation.
19. On
26 November 1992, at 10.55 p.m., a detective chief
inspector of the RUC criminal investigation department
interviewed Sergeant A, in the presence of his solicitor
and a representative of the ICPC. Sergeant A, member of an
HMSU unit,
stated as follows.
He had been at a briefing at 11 a.m. the
day before concerning reports of a planned distribution of
kit and munitions, including weapons, explosives and
mortars, by the Provisional IRA in West Belfast. A
surveillance operation was to be mounted and he was in
charge of the teams on the ground which were going to
intervene if possible to intercept the munitions. He was
carrying a Smith and Wesson 59 pistol and a MP5 Heckler
& Koch. At about 3.20-3.30 p.m., following reports of
a car acting suspiciously at White Rock leisure centre, he
and his teams left Woodbourne police station to wait at
Andersontown police station. They heard reports there of a
build up of activity at the back of two houses in Arizona
street, which were under surveillance. The red car from
the leisure centre arrived in Arizona street. Sergeant A
thought that this was possibly the re-supply of terrorist
equipment taking place. He was told by radio to gather his
people together – car crews with call signs 8, 9, 3 and
12. When the red Orion left Arizona street, he and his
crews left the police station but were called back almost
immediately to allow the red Orion to make its run. A red
Cavalier left Arizona street and they were told to allow
that to run. News arrived that the red Orion had come back
to Arizona street. Sergeant A was told on the radio that
the next time the red Orion came out they were to
intercept it. He split his crews in two, his own team
(call signs 8 and 12) to approach from the city side and
the crews with call signs 3 and 9 to approach from the
country side.
When the red Orion came past the two
police cars, Sergeant A saw that there was one driver.
They pulled out behind it. His driver flashed his lights
at it. They switched on their police klaxon but had no
blue flashing light on the car and none of them were
wearing their police caps. Sergeant A’s car drew level
with the Orion and he signalled for it to pull over. The
Orion slowed falling behind and then shot past on the
passenger side, accelerating down the Falls Road in the
direction of the city. Sergeant A told his driver to
pursue him and force him off the road. The car possibly
reached the speed of 60, maybe 70 miles per hour at the
fastest. They were in a built up area, in traffic so it
was difficult to judge. Their klaxon was going throughout.
They drew parallel with the red Orion and nudged it once.
The impact was hard enough to force the Orion partly up on
the pavement and stop it. Sergeant A’s own car stopped
partly on the pavement in front of the Orion. The lock of
his door had broken on the impact. He burst out of the
door onto the pavement moving towards the Orion. He saw
the driver running across the road from left to right at
an angle away from him. He was looking over his right
shoulder in Sergeant A’s direction as he ran. Sergeant A
said that he called out “Police. Halt.” or “Halt.
Police.”
The driver of the Orion turned around
towards him. He could not see the man’s hands which were
below his waist. His vision was either obscured by the
roof of the police car in front of him or the arrival of
the other black car (crew 12) on the scene. As he could
not see the man’s hands, he thought that his own life or
the life of his own driver might be at risk. He feared the
man was armed as he had spun round so quickly. He fired a
short burst from his MP5 at the trunk of the man. When he
made the split second decision to fire, the man was facing
him but he could not say whether he had turned or moved in
some other way. He was aware of other police officers
shouting. He ran towards the driver who ran towards the
footpath on the far side of the road. Constable F was
shouting at him to get down on his knees. The driver fell
flat, toppling over. It was realised at that stage that he
was seriously injured.
Sergeant A quickly searched the car,
while other security force personnel administered first
aid to the driver. Either base, or he himself, suggested
that the police officers move to Arizona street. The
military took over the first aid. He had directed most of
the police officers to leave the scene as soon as they had
arrived, including crew 12 in their car. He did not know
that car 12 had come into contact with the Orion or the
deceased. He arrived back at the station at about 5.30 to
6.00 p.m. There was a 20-30 minute debriefing in which he
participated. He also discussed the matter casually with
the others who were there. He was instructed to hand in
his weapon at about that time.
20. On
30 March 1993, a detective inspector carried out a second
interview of Sergeant A, in the presence of his solicitor.
Further questions were put about his position and actions
at the time of the shooting. He recalled that he had had a
clear view of the deceased from the waist up. When the
deceased turned to face him, he did not make any movements
towards him. His arms remained down though. When asked to
explain precisely why he had considered that his life was
in danger, given that he could not confirm that the
deceased was armed, Sergeant A replied that it had been a
prolonged operation lasting several hours involving
serious terrorist activity. The red Orion had reacted in a
very aggressive manner in driving at excessive speed on a
busy road. When the Orion was stopped, the driver ran away
and when he was ordered to stop, he turned towards the
Sergeant in what the Sergeant interpreted as an aggressive
manner. His arms were down and his hands out of sight. In
that short space of time, he formed the opinion that the
deceased was a threat to his life. The man’s actions had
not been of someone about to surrender. He was certain
that there were no viable alternatives to discharging his
own weapon.
21. Forensic
examinations of the cars involved in the incident were
carried out. Interviews were conducted with the
other police officers and army personnel involved in the
incident.
According to the statements of police
officers D, E and F in the car call sign 12, they had been
pursuing the red Orion car close behind the red police
Sierra in which Sergeant A was driving. When the Orion
stopped, their car pulled up behind. As they were
stopping, the driver was running from the car and either
he ran into them or their car struck him, clipping him on
the right thigh. The driver span round towards call sign
8. At that point, there was a short burst of gunfire.
Their car had also at some point made contact with the red
Orion in the rear. Only officer D heard shouting coming
from the call sign 8 direction before the shooting.
Shortly after moving their car to facilitate the flow of
traffic, they had been directed to Arizona street.
In his statement of 6 December 1992,
Sergeant H, from the car call sign 11, stated that on
arrival at the scene he had instructed car 12 to be moved
to facilitate the movement of a bus which had stopped very
close to the injured man. He was not aware that car 12
might have struck the red Orion car or the deceased. The
car was only moved back slightly and he was not involved
in directing its complete removal from the scene.
Inspector M gave a statement on 7
December 1992 that, on being satisfied that the injured
man was receiving first aid and that the red Orion had
been secured, he gave directions for all the HMSU police
teams to go to Arizona street for searches. Some sort of
device has been located there.
22. During
the investigation, appeals were made by the police in
newspapers and broadcast media for potential eyewitnesses
to come forward. A number of civilians made statements to
the police and subsequently gave evidence at the inquest.
In May 1993, the RUC concluded its inquiry. Its report on
the investigation was submitted to the Director of Public
Prosecutions (the DPP) on 25 May 1993.
23. On
3 June 1993, the ICPC wrote to the applicant’s family
expressing the view that the RUC report of 25 May 1993
concerning the criminal investigation into the shooting
was satisfactory. On 15 June 1993, the RUC wrote to the
applicant advising him that the papers had been sent to
the DPP. The applicant and his family were not however
provided with any indication as to the nature of the
RUC’s findings.
24. On
16 November 1993, the DPP’s department issued to the
Chief Constable of the RUC a direction of “no
prosecution” in respect of the fatal shooting of Pearse
Jordan. It had been concluded that the evidence was
insufficient to warrant the prosecution of any person.
25. On
22 November 1993, having considered a submission by the
CAJ, the DPP notified the CAJ that the direction of “no
prosecution” should stand.
26. On
11 February 1994, the RUC Complaints and Discipline
Department wrote to the applicant to inform him that the
report on the shooting had been sent to the ICPC.
27. On
31 August 1994, the ICPC wrote to the applicant to inform
him that after careful scrutiny of all the details it was
of the opinion that the evidence was insufficient to
warrant the preferment of disciplinary charges against the
police officers concerned.
B. The inquest
28. On
29 November 1993, the RUC notified the Coroner that the
DPP had directed “no prosecution”. Following that
decision, the Coroner decided to hold an inquest.
29. On
4 November 1994, the Coroner received the case papers from
the RUC.
30. On
or about 13 November 1994, the Coroner wrote to interested
parties informing them that the inquest would begin on 4
January 1995.
31. Prior
to the commencement of the inquest, the Secretary of State
for Defence issued a certificate in which he identified
information whose disclosure at the inquest he believed
would be contrary to the public interest on grounds of
national security, and made an application that the
identities of certain military witnesses be withheld and
that they should give their evidence from behind a screen.
32. On
20 December 1994, the Coroner held a preliminary hearing
at which he decided to:
(a) protect
certain categories of information from disclosure on the
grounds of national security;
(b) protect
the identity of three military witnesses, Soldiers V, W
and X by withholding their names and screening them from
all except the Coroner, the jury and the legal
representatives of the interested parties; and
(c) protect
the identity of certain RUC officers, including Sergeant A
(the officer who fired the shots which killed Pearse
Jordan) by withholding their names.
33. On
2 January 1995, the Secretary of State for Northern
Ireland issued a certificate in which he identified
information whose disclosure at the inquest he believed
would be contrary to the public interest as compromising
the integrity of RUC intelligence operations.
34. On
4 January 1995, the Coroner’s inquest commenced. The
applicant and his family were represented by a solicitor
and counsel. The RUC were represented. The Coroner sat for
three and a half days, hearing evidence from 19 witnesses,
including the applicant, 8 civilians, Soldiers V, W and X,
7 police officers and a pathologist. These witnesses were
subject to cross-examination. Sergeant A had informed the
Coroner that he would not appear.
35. On
or about 8 January 1995, the CAJ provided the Coroner with
a statement which they had received from another civilian
witness, a driver of a black taxi who had been at the
scene.
36. On
10 January 1995, the Coroner rejected the request by the
applicant’s counsel to withdraw the protection of the
identities of the RUC witnesses.
37. The
proceedings were adjourned on 16 January 1995, at the
request of Pearse Jordan’s family, to enable the DPP, in
the light of new evidence from the taxi driver, to
reconsider the decision whether or not to bring a
prosecution. The Coroner wrote to the DPP informing him
that new evidence had come to light which should be
considered.
38. On
10 February 1995, the DPP decided that the evidence
remained insufficient to warrant the prosecution of any
person in relation to Pearse Jordan’s death. He
requested that any further evidence adduced at the inquest
relevant to his functions be reported to him.
39. On
14 February 1995, the applicant’s legal representatives
were informed by the DPP that his decision not to bring a
prosecution still stood.
40. On
10 March 1995, the applicant’s legal representatives
made an application for the Coroner to discharge himself
from the Inquest on the grounds that he was not conducting
the inquest fairly. The Coroner refused the application.
41. On
11 April 1995, the Coroner wrote to the interested parties
informing them that the inquest would resume on 12 June
1995.
42. On
26 May 1995, the applicant’s legal representatives
commenced judicial review proceedings seeking declarations
that certain rulings given by the Coroner in the course of
the inquest were wrong in law. Leave was granted on 2 June
1995. The applicant sought orders of certiorari to quash inter
alia (a) the Coroner’s refusal to give the next
of kin access to the statements of the witnesses before
they gave evidence at the inquest and (b) the
decision of the Coroner to grant anonymity to RUC
witnesses. Legal aid was granted to the applicant for this
purpose. The Coroner adjourned the inquest pending these
proceedings.
43. Leave
was granted to bring judicial review proceedings against
the Coroner on 2 June 1995.
44. The
judicial review application was heard on 9 and 10 November
1995. By judgment of 11 December 1995, Lord Justice
Carswell refused the applicant’s claims. In doing so he
had regard to the inquisitorial nature of inquest
proceedings. He referred to the remarks of Griffiths J in Ex
parte Peach:
“A coroner’s inquest is an
inquisitorial procedure with a very limited objective
indeed. The objective is set out in rule 26 of the
Coroners Rules 1953. It is limited to ascertaining the
following matters: who the deceased was; how, when and
where the deceased came by his death. There is a further
specific limitation provided by the Coroners (Amendment)
Rules 1977. These provide by rule 7 that no verdict shall
be framed in such a way as to appear to determine any
question of criminal liability on the part of a named
person or of civil liability.
It is quite true that the coroner may
allow interested parties to examine a witness called by
the coroner. But that must be for the purpose of assisting
in establishing the matters which the inquest is directed
to determine. It is not intended by rule 16 to widen the
coroner’s inquest into adversarial fields of
conflict.”
45. Lord
Justice Carswell also referred to the statutory background
governing the procedure at inquest: Section 31(1) of the
Coroners Act (Northern Ireland) 1959 providing that the
jury shall give their verdict in the form prescribed by
rules,
“setting forth, so far as such
particulars have been proved to them, who the deceased
person was and how, when and where he came to his
death.”
and Rule 16 of
the Coroners (Practice and Procedure) Rules 1963
providing:
“neither the coroner nor the jury
shall express any opinion on questions of criminal or
civil liability ...”
46. On
8 January 1996, the applicant appealed against the
decision of Lord Justice Carswell. The appeal was
dismissed by the Court of Appeal of Northern Ireland on 28 June
1996. The applicant’s application for leave to appeal to
the House of Lords was refused on 4 October 1996. The
House of Lords also refused leave on 20 March 1997.
47. The
inquest was due to recommence on 1 December 1997. However,
it was adjourned on 19 November 1997 by the Coroner, after
consultation with the parties, pending the outcome of a
judicial review application in the High Court concerning
the availability of legal aid for legal representation for
the family of the deceased at inquests.
48. On
16 March 1999, final judgment was given in the case of Sharon
Lavery v. the Secretary of State and the Legal Aid
Department, in which a challenge concerning the
unavailability of legal aid for inquests was dismissed.
49. On
1 July 1999, the Coroner informed the interested parties
that he intended to resume the inquest on 1 November 1999.
50. On
13 October 1999, the Coroner adjourned the inquest pending
the applicant’s application for the disclosure of
documents by the Chief Constable of the RUC in the wake of
the Home Office Circular issued on 28 April 1999 on
deaths in police custody which recommended, inter
alia, that material supplied by the police to the
Coroner should be made available to the families of
deceased persons (see paragraphs 73 and 74 below).
51. On
2 February 2000, the applicant was informed that the Chief
Constable would provide copies of the statements of the
witnesses who were to appear at the inquest and copies of
any statements which the Coroner proposed to read out.
52. On
3 March 2000, the applicant was granted leave to bring
judicial review proceedings against the Chief Constable,
challenging his decision not to provide further documents
to the applicant.
53. When
the inquest resumed, the Coroner proposed to call, in
addition to the witnesses who gave evidence in January
1995, 12 police officers and Soldier Y involved in the
anti-terrorist operation in which Pearse Jordan died,
forensic experts and three police officers involved in the
RUC investigation into the shooting.
54. On
a date unspecified between 4 April and 2 October 2000, the
applicant was provided with the witness statements of
persons whom the Coroner has decided should be called to
give evidence at the inquest.
C. Concerning the civil
proceedings
55. The
applicant was granted legal aid to pursue a civil action
for compensation in the High Court. On 7 December 1992,
the applicant instituted civil proceedings, alleging death
by wrongful act.
56. On
5 October 1995, the applicant served a statement of claim
in the civil proceedings. On 24 October 1995 the Ministry
of Defence served their defence, together with a request
for further and better particulars of the statement of
claim. The applicant did not reply to this request until a
date unspecified subsequent to 27 August 1998.
57. On
8 October 1999, the Crown Solicitor wrote to the applicant
seeking consent to a remittal of the civil action to
trial.
58. The
applicant stated that the case is currently at the
discovery stage but that this cannot be concluded until
the inquest is terminated.
II. RELEVANT DOMESTIC LAW
AND PRACTICE
A. Use of lethal force
59. 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 e.g. Smith and Hogan on Criminal Law).
B. Inquests
1. Statutory provisions and
rules
60. 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.
61. Pursuant
to the Coroners Act, every medical practitioner, registrar
of deaths or funeral undertaker who has reason to believe
a person died directly or indirectly by violence is under
an obligation to inform the Coroner (section 7). Every
medical practitioner who performs a post
mortem examination has to notify the Coroner of the
result in writing (section 29). Whenever a dead body is
found, or an unexplained death or death in suspicious
circumstances occurs, the police of that district are
required to give notice to the Coroner (section 8).
62. 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.
63. 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.
64. 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.”
65. 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 (e.g.
bullet wounds) and findings as to when and where the
deceased met his death. In England and Wales, the form of
verdict appended to the English Coroners Rules contains a
section marked “conclusions of the jury/coroner as to
the death” in which conclusions such as “lawfully
killed” or “killed unlawfully” are inserted. These
findings involve expressing an opinion on criminal
liability in that they involve a finding as to whether the
death resulted from a criminal act, but no finding is made
that any identified person was criminally liable. The jury
in England and Wales may also append recommendations to
their verdict.
66. 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.
67. Until
recently, legal aid was not available for inquests as they
did not involve the determination of civil liabilities or
criminal charges. Legislation which would have provided
for legal aid at the hearing of inquests (the Legal Aid,
Advice and Assistance (Northern Ireland) Order 1981,
Schedule 1 paragraph 5) has not been brought into force.
However, on 25 July 2000, the Lord Chancellor announced
the establishment of an Extra-Statutory Ex Gratia Scheme
to make public funding available for representation for
proceedings before Coroners in exceptional inquests in
Northern Ireland. In March 2001, he published for
consultation the criteria to be used in deciding whether
applications for representation at inquests should receive
public funding. This included inter
alia consideration of financial eligibility, whether
an effective investigation by the State was needed and
whether the inquest was the only way to conduct it,
whether the applicant required representation to be able
to participate effectively in the inquest and whether the
applicant had a sufficiently close relationship to the
deceased.
68. 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.
69. In
relation to both documentary evidence and the oral
evidence of witnesses, inquests, like criminal trials, are
subject to the law of public interest immunity, which
recognises and gives effect to the public interest, such
as national security, in the non-disclosure of certain
information or certain documents or classes of document. A
claim of public interest immunity must be supported by a
certificate.
2. The scope of inquests
70. 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.”
71. Domestic
courts have made, inter
alia, the following comments:
“... It is noteworthy that the task is
not to ascertain how the deceased died, which might raise
general and far-reaching issues, but ‘how...the deceased
came by his death’, a far more limited question directed
to the means by which the deceased came by his death.
... [previous judgments] make it clear
that when the Brodrick Committee stated that one of the
purposes of an inquest is ‘To allay rumours or
suspicions’ this purpose should be confined to allaying
rumours and suspicions of how the deceased came by his
death and not to allaying rumours or suspicions about the
broad circumstances in which the deceased came by his
death.” (Sir Thomas Bingham, MR, Court of Appeal, R.
v the Coroner for North Humberside and Scunthorpe ex parte
Roy Jamieson, April 1994, unreported)
“The cases establish that although the
word ‘how’ is to be widely interpreted, it means ‘by
what means’ rather than in what broad circumstances ...
In short, the inquiry must focus on matters directly
causative of death and must, indeed, be confined to those
matters alone ...” (Simon Brown LJ, Court of Appeal, R.
v. Coroner for Western District of East Sussex, ex parte
Homberg and others, (1994) 158 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, R
v. South London Coroner ex parte Thompson (1982) 126
SJ 625)
3. Disclosure of documents
72. There
was no requirement prior to 1999 for the families at
inquests to receive copies of the written statements or
documents submitted to the Coroner during the inquest.
Coroners generally adopted the practice of disclosing the
statements or documents during the inquest proceedings, as
the relevant witness came forward to give evidence.
73. Following
the recommendation of the Stephen Lawrence Inquiry, Home
Office Circular No. 20/99 (concerning deaths in custody or
deaths resulting from the actions of a police officer in
purported execution of his duty) advised Chief Constables
of police forces in England and Wales to make arrangements
in such cases for the pre-inquest disclosure of
documentary evidence to interested parties. This was to
“help provide reassurance to the family of the deceased
and other interested persons that a full and open police
investigation has been conducted, and that they and their
legal representatives will not be disadvantaged at the
inquest”. Such disclosure was recommended to take place
28 days before the inquest.
74. Paragraph
7 of the Circular stated:
“The courts have established that
statements taken by the police and other documentary
material produced by the police during the investigation
of a death in police custody are the property of the force
commissioning the investigation. The Coroner has no power
to order the pre-inquest disclosure of such material...
Disclosure will therefore be on a voluntary basis.”
Paragraph 9 listed some kinds of
material which require particular consideration before
being disclosed, for example:
– where
disclosure of documents might have a prejudicial effect on
possible subsequent proceedings (criminal, civil or
disciplinary);
– where
the material concerns sensitive or personal information
about the deceased or unsubstantiated allegations which
might cause distress to the family; and
– personal
information about third parties not material to the
inquest.
Paragraph 11 envisaged that there would
be non-disclosure of the investigating officer’s report
although it might be possible to disclose it in those
cases which the Chief Constable considered appropriate.
C. Police Complaints Procedures
75. The
police complaints procedure was governed at the relevant
time by the Police (Northern Ireland) Order 1987 (the 1987
Order). This replaced the Police Complaints Board, which
had been set up in 1977, by the Independent Commission for
Police Complaints (the ICPC). The ICPC has been replaced
from 1 October 2000 with the Police Ombudsman for Northern
Ireland appointed under the Police (Northern Ireland) Act
1998.
76. The
ICPC was an independent body, consisting of a chairman,
two deputy chairmen and at least four other members. Where
a complaint against the police was being investigated by a
police officer or where the Chief Constable or Secretary
of State considered that a criminal offence might have
been committed by a police officer, the case was referred
to the ICPC.
77. The
ICPC was required under Article 9(1)(a) of the 1987 Order
to supervise the investigation of any complaint alleging
that the conduct of a RUC officer had resulted in death or
serious injury. Its approval was required of the
appointment of the police officer to conduct the
investigation and it could require the investigating
officer to be replaced (Article 9(5)(b)). A report by the
investigating officer was submitted to the ICPC concerning
supervised investigations at the same time as to the Chief
Constable. Pursuant to Article 9(8) of the 1987 Order, the
ICPC issued a statement whether the investigation had been
conducted to its satisfaction and, if not, specifying any
respect in which it had not been so conducted.
78. The
Chief Constable was required under Article 10 of the 1987
Order to determine whether the report indicated that a
criminal offence had been committed by a member of the
police force. If he so decided and considered that the
officer ought to be charged, he was required to send a
copy of the report to the DPP. If the DPP decided not to
prefer criminal charges, the Chief Constable was required
to send a memorandum to the ICPC indicating whether he
intended to bring disciplinary proceedings against the
officer (Article 10(5)) save where disciplinary
proceedings had been brought and the police officer had
admitted the charges (Article 11(1)). Where the Chief
Constable considered that a criminal offence had been
committed but that the offence was not such that the
police officer should be charged or where he considered
that no criminal offence had been committed, he was
required to send a memorandum indicating whether he
intended to bring disciplinary charges and, if not, his
reasons for not proposing to do so (Article 11(6) and
(7)).
79. If
the ICPC considered that a police officer subject to
investigation ought to be charged with a criminal offence,
it could direct the Chief Constable to send the DPP a copy
of the report on that investigation (Article 12(2)). It
could also recommend or direct the Chief Constable to
prefer such disciplinary charges as the ICPC specified
(Article 13(1) and (3)).
D. The Director of Public
Prosecutions
80. The
Director of Public Prosecutions (the DPP), appointed
pursuant to the Prosecution of Offences (Northern Ireland)
1972 (the 1972 Order) is an independent officer with at
least 10 years’ experience of the practice of law in
Northern Ireland who is appointed by the Attorney General
and who holds office until retirement, subject only to
dismissal for misconduct. His duties under Article 5 of
the 1972 Order are inter
alia:
“(a) to consider, or cause
to be considered, with a view to his initiating or
continuing in Northern Ireland any criminal proceedings or
the bringing of any appeal or other proceedings in or in
connection with any criminal cause or matter in Northern
Ireland, any facts or information brought to his notice,
whether by the Chief Constable acting in pursuance of
Article 6(3) of this Order or by the Attorney General or
by any other authority or person;
(b) to examine or cause to be
examined all documents that are required under Article 6
of this Order to be transmitted or furnished to him and
where it appears to him to be necessary or appropriate to
do so to cause any matter arising thereon to be further
investigated;
(c) where he thinks proper to
initiate, undertake and carry on, on behalf of the Crown,
proceedings for indictable offences and for such summary
offences or classes of summary offences as he considers
should be dealt with by him.”
81. Article
6 of the 1972 Order requires inter
alia Coroners and the Chief Constable of the RUC to
provide information to the DPP as follows:
“(2) Where the
circumstances of any death investigated or being
investigated by a coroner appear to him to disclose that a
criminal offence may have been committed he shall as soon
as practicable furnish to the [DPP] a written report of
those circumstances.
(3) It shall be the duty of
the Chief Constable, from time to time, to furnish to the
[DPP] facts and information with respect to -
(a) indictable offences [such
as murder] alleged to have been committed against the law
of Northern Ireland; ...
and at the request of the [DPP], to
ascertain and furnish to the [DPP] information regarding
any matter which may appear to the [DPP] to require
investigation on the ground that it may involve an offence
against the law of Northern Ireland or information which
may appear to the [DPP] to be necessary for the discharge
of his functions under this Order.”
82. According
to the Government’s observations submitted on 18 June
1998, it had been the practice of successive DPPs to
refrain from giving reasons for decisions not to institute
or proceed with criminal prosecutions other than in the
most general terms. This practice was based upon the
consideration that
(1) if
reason were given in one or more cases, they would be
required to be given in all. Otherwise, erroneous
conclusions might be drawn in relation to those cases
where reasons were refused, involving either unjust
implications regarding the guilt of some individuals or
suspicions of malpractice;
(2) the
reason not to prosecute might often be the unavailability
of a particular item of evidence essential to establish
the case (e.g. sudden death or flight of a witness or
intimidation). To indicate such a factor as the sole
reason for not prosecuting might lead to assumptions of
guilt in the public estimation;
(3) the
publication of the reasons might cause pain or damage to
persons other than the suspect (e.g. the assessment of the
credibility or mental condition of the victim or other
witnesses);
(4) in
a substantial category of cases decisions not to prosecute
were based on the DPP’s assessment of the public
interest. Where the sole reason not to prosecute was the
age, mental or physical health of the suspect, publication
would not be appropriate and could lead to unjust
implications;
(5) there
might be considerations of national security which
affected the safety of individuals (e.g. where no
prosecution could safely or fairly be brought without
disclosing information which would be of assistance to
terrorist organisations, would impair the effectiveness of
the counter-terrorist operations of the security forces or
endanger the lives of such personnel and their families or
informants).
83. Decisions
of the DPP not to prosecute have been subject to
applications for judicial review in the High Court.
In R
v. DPP ex parte C (1995) 1 CAR, p. 141, Lord Justice
Kennedy held, concerning a decision of the DPP not to
prosecute in an alleged case of buggery:
“From all of those decisions it seems
to me that in the context of the present case this court
can be persuaded to act if and only if it is demonstrated
to us that the Director of Public Prosecutions acting
through the Crown Prosecution Service arrived at the
decision not to prosecute:
(1) because of some unlawful
policy (such as the hypothetical decision in Blackburn
not to prosecute where the value of goods stolen was below
£100);
(2) because the Director of
Public Prosecutions failed to act in accordance with his
own settled policy as set out in the code; or
(3) because the decision was
perverse. It
was a decision at which no reasonable prosecutor could
have arrived.”
84. In
the case of R v.
the DPP and Others ex parte Timothy Jones the
Divisional Court on 22 March 2000 quashed a decision not
to prosecute for alleged gross negligence causing a death
in dock unloading on the basis that the reasons given by
the DPP – that the evidence was not sufficient to
provide a realistic prospect of satisfying a jury –
required further explanation.
85. R
v. DPP ex parte Patricia Manning and Elizabeth Manning
(decision of the Divisional Court of 17 May 2000)
concerned the DPP’s decision not to prosecute any prison
officer for manslaughter in respect of the death of a
prisoner, although the inquest jury had reached a verdict
of unlawful death - there was evidence that prison
officers had used a neck lock which was forbidden and
dangerous. The DPP reviewing the case still concluded that
the Crown would be unable to establish manslaughter from
gross negligence. The Lord Chief Justice noted:
“Authority makes clear that a decision
by the Director not to prosecute is susceptible to
judicial review: see, for example, R. v. Director of
Public Prosecutions, ex parte C [1995] 1 Cr. App. R.
136. But, as
the decided cases also make clear, the power of review is
one to be sparingly exercised. The reasons for this are
clear. The primary decision to prosecute or not to
prosecute is entrusted by Parliament to the Director as
head of an independent, professional prosecuting service,
answerable to the Attorney General in his role as guardian
of the public interest, and to no-one else. It makes no
difference that in practice the decision will ordinarily
be taken by a senior member of the CPS, as it was here,
and not by the Director personally. In any borderline case
the decision may be one of acute difficulty, since while a
defendant whom a jury would be likely to convict should
properly be brought to justice and tried, a defendant whom
a jury would be likely to acquit should not be subjected
to the trauma inherent in a criminal trial. If, in a case
such as the present, the Director’s provisional decision
is not to prosecute, that decision will be subject to
review by Senior Treasury Counsel who will exercise an
independent professional judgment. The Director and his
officials (and Senior Treasury Counsel when consulted)
will bring to their task of deciding whether to prosecute
an experience and expertise which most courts called upon
to review their decisions could not match. In most cases
the decision will turn not on an analysis of the relevant
legal principles but on the exercise of an informed
judgment of how a case against a particular defendant, if
brought, would be likely to fare in the context of a
criminal trial before (in a serious case such as this) a
jury. This exercise of judgment involves an assessment of
the strength, by the end of the trial, of the evidence
against the defendant and of the likely defences. It will
often be impossible to stigmatise a judgment on such
matters as wrong even if one disagrees with it. So the
courts will not easily find that a decision not to
prosecute is bad in law, on which basis alone the court is
entitled to interfere. At the same time, the standard of
review should not be set too high, since judicial review
is the only means by which the citizen can seek redress
against a decision not to prosecute and if the test were
too exacting an effective remedy would be denied.”
As regards whether the DPP had a duty to
give reasons, the Lord Chief Justice said:
“It is not contended that the Director
is subject to an obligation to give reasons in every case
in which he decides not to prosecute. Even in the small
and very narrowly defined cases which meet Mr Blake’s
conditions set out above, we do not understand domestic
law or the jurisprudence of the European Court of Human
Rights to impose an absolute and unqualified obligation to
give reasons for a decision not to prosecute. But the
right to life is the most fundamental of all human rights.
It is put at the forefront of the Convention. The power to
derogate from it is very limited. The death of a person in
the custody of the State must always arouse concern, as
recognised by section 8(1)(c), (3)(b) and (6) of the
Coroner’s Act 1988, and if the death resulted from
violence inflicted by agents of the State that concern
must be profound. The holding of an inquest in public by
an independent judicial official, the coroner, in which
interested parties are able to participate must in our
view be regarded as a full and effective inquiry (see McCann
v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to
164). Where such an inquest following a proper direction
to the jury culminates in a lawful verdict of unlawful
killing implicating a person who, although not named in
the verdict, is clearly identified, who is living and
whose whereabouts are known, the ordinary expectation
would naturally be that a prosecution would follow. In the
absence of compelling grounds for not giving reasons, we
would expect the Director to give reasons in such a case:
to meet the reasonable expectation of interested parties
that either a prosecution would follow or a reasonable
explanation for not prosecuting be given, to vindicate the
Director’s decision by showing that solid grounds exist
for what might otherwise appear to be a surprising or even
inexplicable decision and to meet the European Court’s
expectation that if a prosecution is not to follow a
plausible explanation will be given. We would be very
surprised if such a general practice were not welcome to
Members of Parliament whose constituents have died in such
circumstances. We readily accept that such reasons would
have to be drawn with care and skill so as to respect
third party and public interests and avoid undue prejudice
to those who would have no opportunity to defend
themselves. We
also accept that time and skill would be needed to prepare
a summary which was reasonably brief but did not distort
the true basis of the decision. But the number of cases
which meet Mr Blake’s conditions is very small (we were
told that since 1981, including deaths in police custody,
there have been seven such cases), and the time and
expense involved could scarcely be greater than that
involved in resisting an application for judicial review.
In any event it would seem to be wrong in principle to
require the citizen to make a complaint of unlawfulness
against the Director in order to obtain a response which
good administrative practice would in the ordinary course
require.”
On this basis, the court reviewed
whether the reasons given by the DPP in that case were in
accordance with the Code for Crown Prosecutors and capable
of supporting a decision not to prosecute. It found that
the decision had failed to take relevant matters into
account and that this vitiated the decision not to
prosecute. The decision was quashed and the DPP was
required to reconsider his decision whether or not to
prosecute.
86. In
the Matter of an Application by David Adams for Judicial
Review, the High Court in Northern Ireland on 7 June
2000 considered the applicant’s claim that the DPP had
failed to give adequate and intelligible reasons for his
decision not to prosecute any police officer concerned in
the arrest during which he had suffered serious injuries
and for which in civil proceedings he had obtained an
award of damages against the police. It noted that there
was no statutory obligation on the DPP under the 1972
Order to give reasons and considered that no duty to give
reasons could be implied. The fact that the DPP in England
and Wales had in a number of cases furnished detailed
reasons, whether from increasing concern for transparency
or in the interests of the victim’s families, was a
matter for his discretion. It concluded on the basis of
authorities that only in exceptional cases such as the
Manning case (paragraph 85 above) would the DPP be
required to furnish reasons to a victim for failing to
prosecute and that review should be limited to where the
principles identified by Lord Justice Kennedy (paragraph
83 above) were infringed. Notwithstanding the findings in
the civil case, they were not persuaded that the DPP had
acted in such an aberrant, inexplicable or irrational
manner that the case cried out for reasons to be furnished
as to why he had so acted.
III. RELEVANT
INTERNATIONAL LAW AND PRACTICE
A. The United Nations
87. 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.
88. Paragraph
9 of the UN Force and Firearms Principles provides, inter
alia, that the “intentional lethal use of firearms
may only be made when strictly unavoidable in order to
protect life”.
89. Other
relevant provisions read as follows:
Paragraph 10
“... law enforcement officials shall
identify themselves as such and shall give a clear warning
of their intent to use firearms, with sufficient time for
the warnings to be observed, unless to do so would unduly
place the law enforcement officials at risk or would
create a risk of death or serious harm to other persons,
or would be clearly inappropriate or pointless in the
circumstances of the incident.”
Paragraph 22
“... Governments and law enforcement
agencies shall ensure that an effective review process is
available and that independent administrative or
prosecutorial authorities are in a position to exercise
jurisdiction in appropriate circumstances. In cases of
death and serious injury or other grave consequences, a
detailed report shall be sent promptly to the competent
authorities responsible for administrative review and
judicial control.”
Paragraph 23
“Persons affected by the use of force
and firearms or their legal representatives shall have
access to an independent process, including a judicial
process. In
the event of the death of such persons, this provision
shall apply to their dependants accordingly.”
90. 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 ...”
91. Paragraphs
10 to 17 of the UN Principles on Extra-Legal Executions
contain a series of detailed requirements that should be
observed by investigative procedures into such deaths.
Paragraph 10 states, inter
alia:
“The investigative authority shall
have the power to obtain all the information necessary to
the inquiry. Those persons conducting the inquiry ...
shall also have the authority to oblige officials
allegedly involved in any such executions to appear and
testify ...”
Paragraph 11 specifies:
“In cases in which the established
investigative procedures are inadequate because of a lack
of expertise or impartiality, because of the importance of
the matter or because of the apparent existence of a
pattern of abuse, and in cases where there are complaints
from the family of the victim about these inadequacies or
other substantial reasons, Governments shall pursue
investigations through an independent commission of
inquiry or similar procedure. Members of such a commission
shall be chosen for their recognised impartiality,
competence and independence as individuals. In particular,
they shall be independent of any institution, agency or
person that may be the subject of the inquiry. The
commission shall have the authority to obtain all
information necessary to the inquiry and shall conduct the
inquiry as provided in these principles.”
Paragraph 16 provides, inter
alia:
“Families of the deceased and their
legal representatives shall be informed of, and have
access to, any hearing as well as all information relevant
to the investigation and shall be entitled to present
other evidence ...”
Paragraph 17 provides, inter
alia:
“A written report shall be made within
a reasonable time on the methods and findings of such
investigations. The report shall be made public
immediately and shall include the scope of the inquiry,
procedures, methods used to evaluate evidence as well as
conclusions and recommendations based on findings of fact
and on applicable law ...”
92. 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
...”.
B. The European Committee for
the Prevention of Torture
93. In
the report on its visit to the United Kingdom and the Isle
of Man from 8 to 17 September 1999, published on 13
January 2000, the European Committee for the Prevention of
Torture (the CPT) reviewed the system of preferring
criminal and disciplinary charges against police officers
accused of ill-treating persons. It commented, inter
alia, on the statistically few criminal prosecutions
and disciplinary proceedings which were brought, and
identified certain aspects of the procedures which cast
doubt on their effectiveness:
The chief officers appointed officers
from the same force to conduct the investigations, save in
exceptional cases where they appointed an officer from
another force, and the majority of investigations were
unsupervised by the Police Complaints Authority.
It stated at paragraph 55:
“As already indicated, the CPT itself
entertains reservations about whether the PCA [the Police
Complaints Authority], even equipped with the enhanced
powers which have been proposed, will be capable of
persuading public opinion that complaints against the
police are vigorously investigated. In
the view of the CPT, the creation of a fully-fledged
independent investigating agency would be a most welcome
development. Such a body should certainly, like the PCA,
have the power to direct that disciplinary proceedings be
instigated against police officers. Further, in the
interests of bolstering public confidence, it might also
be thought appropriate that such a body be invested with
the power to remit a case directly to the CPS for
consideration of whether or not criminal proceedings
should be brought.
In any event, the
CPT recommends that the role of the ‘chief officer’
within the existing system be reviewed. To take the
example of one Metropolitan Police officer to whom certain
of the chief officer’s functions have been delegated
(the Director of the CIB [Criminal Investigations
Bureau]), he is currently expected to: seek dispensations
from the PCA; appoint investigating police officers and
assume managerial responsibility for their work; determine
whether an investigating officer’s report indicates that
a criminal offence may have been committed; decide whether
to bring disciplinary proceedings against a police officer
on the basis of an investigating officer’s report, and
liase with the PCA on this question; determine which
disciplinary charges should be brought against an officer
who is to face charges; in civil cases, negotiate
settlement strategies and authorise payments into court.
It is doubtful whether it is realistic to expect any
single official to be able to perform all of these
functions in an entirely independent and impartial way.
57. ...Reference should also
be made to the high degree of public interest in CPS
[Crown Prosecution Service] decisions regarding the
prosecution of police officers (especially in cases
involving allegations of serious misconduct). Confidence
about the manner in which such decisions are reached would
certainly be strengthened were the CPS to be obliged to
give detailed reasons in cases where it was decided that
no criminal proceedings should be brought. The CPT
recommends that such a requirement be introduced.”
THE LAW
I. ALLEGED VIOLATIONS OF
ARTICLE 2 OF THE CONVENTION
94. The
applicant submitted that his son Pearse Jordan had been
unjustifiably killed and that there had been no effective
investigation into the circumstances of his death. He
invoked Article 2 of the Convention which provides:
“1. Everyone’s right to
life shall be protected by law. No one shall be deprived
of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime
for which this penalty is provided by law.
2. Deprivation of life shall
not be regarded as inflicted in contravention of this
Article when it results from the use of force which is no
more than absolutely necessary:
(a) in defence of any person
from unlawful violence;
(b) in order to effect a
lawful arrest or to prevent the escape of a person
lawfully detained;
(c) in action lawfully taken
for the purpose of quelling a riot or insurrection.”
A. The submissions made to the
Court
1. The applicant
95. The
applicant submitted that the death of his son was the
result of the unnecessary and disproportionate use of
force by an RUC officer and that his son was the victim of
a shoot-to-kill policy operated by the United Kingdom
Government in Northern Ireland. He referred, inter
alia, to reports by Amnesty International and the
Human Rights Watch, as well as the statements made by Mr
John Stalker, a senior policeman, who carried out an
investigation into allegations of such a policy. He argued
that this case could not be looked at in isolation from
the other cases in Northern Ireland involving the use of
lethal force by State agents. In this context, it could be
seen on analysis of the lethal force deaths between 1969
and 1994 that there was at the material time a practice
whereby suspects were arbitrarily killed rather than
arrested. He pointed to the common features of preplanning
based on intelligence from informers, the deployment of
specialist military or police units and the maximal use of
force. In this case, Sergeant A had no evidence that
Pearse Jordan was armed, and directed fire at the trunk of
the body, making no attempt to wound or take evasive
action in ducking behind his armoured car to protect
himself. This could not be regarded as the use of minimum
or proportionate force. The inadequate investigations into
this and other cases were also evidence of official
tolerance on the part of the State of the use of unlawful
lethal force. Here, the police officer involved in the
shooting was allowed to leave the scene with his weapons,
a car involved in the incident had been moved from the
scene and no adequate steps were taken to find independent
eye witnesses, while witnesses who did come forward were
subject to abuse and harassment.
96. The
applicant submitted that while there were a few
outstanding issues of fact, e.g. whether Sergeant A issued
a warning, and whether and in what manner the deceased
changed direction as he ran away, these elements were
relevant only to issues of individual criminal
responsibility and did not prevent the Court reaching its
own conclusions under Article 2 of the Convention. To the
extent that the Court felt there were any issues to
resolve, it should of its own motion obtain the necessary
