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FOURTH
SECTION
CASE
OF MCGRATH v. THE UNITED KINGDOM
(Application
no. 34651/04)
JUDGMENT
STRASBOURG
27
November 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of McGrath v. the United
Kingdom,
The European Court of Human Rights
(Fourth Section), sitting as a Chamber composed of:
Mr J.
Casadevall,
President,
Sir Nicolas Bratza,
Mr G.
Bonello,
Mr K.
Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta,
Mrs P.
Hirvelä,
judges,
and Mr T.L. Early,
Section
Registrar,
Having deliberated in private on 6
November 2007,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
1. The case originated in
an application (no. 34651/04) against the United Kingdom of
Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)
by an Irish national, Mr Michael McGrath (“the
applicant”), on 10 September 2004.
2. The applicant was
represented by Madden & Finucane, solicitors practising
in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J.
Grainger of the Foreign and Commonwealth Office, London.
3. The applicant alleged
that there had been no adequate investigation into
allegations of collusion and/or involvement by security
forces in his being seriously injured, nor any effective
remedy for the same. He invoked Articles 2 and 13 of the
Convention.
4. By a decision of 6
March 2007 the Court declared the application admissible.
5. The applicant and the
Government each filed further written observations (Rule 59
§ 1), to which they each responded with further written
comments (Rule 59 § 1). The Chamber decided, after
consulting the parties, that no hearing on the merits was
required (Rule 59 § 3 in
fine).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
6. The applicant was born
in 1922 and lives in Granemore, County Armagh.
A. The attack on the
applicant and the initial investigation
7. At about 10.40 p.m.,
shortly after closing time, on 6 June 1976, a police officer
in the Royal Ulster Constabulary (“RUC”) drove a car,
stolen by RUC Reserve Constable Laurence McClure, up to the
Rock Bar, a public house. The applicant was leaving the bar
at that time. He was shot twice in the stomach by McClure,
who then placed a 10lb gelignite bomb against the door of
the pub. The detonator exploded but the bomb failed to
explode. At the later trial a reserve police constable,
William McCaughey, stated that shots were fired by his
companions at the injured man on the ground and then he
fired a number of shots through the window of the bar.
Bullet strike marks were later found around the darts board
inside the bar, where there had been seventeen people.
No-one else was physically injured.
8. The applicant was taken
to hospital in an ambulance and police attended the scene,
sealing off the area while an army technical officer
examined the explosive device and ensured that it was in a
safe condition. A Scene of Crime Officer examined the scene,
took possession of material associated with the bomb and a
gun recovered from a burnt out car found approximately one
mile away, which police linked to the attack. Photographs of
the bar were taken and maps prepared.
B. The investigations
concerning McCaughey and Weir
9. The investigation did
not close and became active again in 1978, when a Catholic
priest Father Hugh Murphy was abducted by loyalist
paramilitaries intending to use him as a hostage vis-à-vis
the IRA. In the course of the investigation, the police
arrested McCaughey, who, in the course of questioning,
revealed his part in the abduction of the priest and in a
variety of other loyalist paramilitary incidents. McCaughey
made allegations incriminating himself and police officer
McClure in respect of the Rock Bar attack. McClure was
arrested and admitted involvement. Two further serving
police officers, Ian Mitchell and David Wilson, also
admitted involvement in, or prior knowledge of, the attack
on the bar. McCaughey admitted firing the shot which wounded
the applicant.
10. The applicant was
aware that charges were pending against four police
officers. He had been contacted by the police in April 1980
and summoned to appear in Belfast Crown Court on 23 April
1980. He was subsequently advised of various date changes
and then that the case was postponed and that he would be
contacted. In fact the hearing took place on 30 June 1980.
The applicant had not been informed and learned about the
outcome on the radio.
11. Three men, McCaughey,
McClure and Mitchell, faced charges of attempted murder of
the applicant, wounding the applicant with intent contrary
to section 18 of the Offences against the Persons Act 1961,
attempted murder of the persons inside the bar, causing an
explosion contrary to section 2 of the Explosives Substances
Act 1883, possession of explosive substances with intent to
endanger life or cause serious injury and possession of
firearms and ammunition with intent. The three officers
pleaded not guilty to the charges of attempted murder;
McClure and Mitchell pleaded not guilty to wounding the
applicant. The Director of Public Prosecutions (“the DPP”)
entered a nolle
prosequi in respect of those charges which
accordingly were not proceeded with. No reasons were given
for this decision. The only person facing a charge
concerning the applicant was McCaughey, who received a term
of seven years for wounding him. McClure was sentenced to
two years' imprisonment for causing an explosion, possession
of an explosive substance with intent and possession of
firearms and ammunition with intent, all sentences suspended
for three years. Another RUC officer, David Wilson, was
charged with withholding information contrary to section
5(1) of the Criminal Law (Northern Ireland) Act 1967, based
on the fact that he had been aware of the attack beforehand
and had not taken any steps to prevent it.
12. With the exception of
McCaughey, the other officers received suspended prison
terms. In sentencing, Lord Lowry stated inter
alia:
“... It does not seem realistic to
believe that after all that they have endured – some with
their careers in ruins, others with their careers in
jeopardy- that they require much by way of deterrent or by
way of reform, and no proper sentence which I pass will make
an impression on terrorists while other members of the
police force are no doubt already embarrassed, sufficiently
embarrassed and shocked by what has happened in these cases
and been seen to happen to their colleagues. ... I must
remember that whatever sentence is just it would follow that
it would be imposed on a different and lower scale from that
appropriate to terrorists, no matter whichever side, whose
aim is to achieve their political ends by violence and to
attack the very fabric of society.”
13. It had been advanced
by the defence and accepted by the trial judge that
McCaughey had only aimed to shoot the applicant in the legs
and had done so.
14. McClure had also been
facing charges in relation to his involvement in the attack
on Donnelly's Bar, Silverbridge, in 1975 in which three
people had been killed (see application no. 32457/04, Brecknell
v. the United Kingdom). These charges were later
dropped.
15. In the course of the
investigation in 1978, McCaughey made revelations giving
rise to investigations in eleven specific cases, some of
which were linked in terms of the identities of those
involved, the modus operandi or by virtue of the ballistic
examinations of weapons used. Nine suspects were arrested in
total, including five police officers, and all were
eventually charged with offences.
16. One of those
implicated was a police officer John Weir who was named as
having been involved in the murder of a shopkeeper called
Strathearn in Ahoghill in April 1977: he was convicted for
that murder in June 1980 and sentenced to life imprisonment.
The Government stated that both McCaughey and Weir refused
to name the two loyalist paramilitaries also involved with
them in the murder unless they received immunity from
prosecution. The police and prosecuting authority took the
decision prior to the trial not to enter into any process of
bargaining with Weir and McCaughey. While both were
approached by the police after their convictions to see if
at that stage they would give evidence against the loyalist
paramilitaries, each again refused to do so unless there was
something in it for themselves. The Government stated that
during the period in which Weir was detained he was
interviewed on a large number of occasions. At no time did
he implicate himself or others in any offence other than the
Strathearn murder.
C. The Weir allegations
and the response of the authorities
17. On 1 February 1993
John Weir was released from prison on licence. In January
1999, he made a statement to a journalist alleging RUC and
Ulster Defence Regiment ("UDR") collusion with
loyalist paramilitaries from the Portadown area in the
mid-1970s. This statement was published in the Sunday Times
newspaper in March 1999. It was obtained by the Patrick
Finucane Centre, a human rights non-governmental
organisation in Derry (“the Centre”).
18. John Weir's statement
made detailed allegations about security force collusion
with loyalist paramilitaries in a series of incidents. He
alleged inter
alia that RUC Reserve Constable Laurence McClure had
told him that the murder of the Reavey family members was
carried out by Robert McConnell, a member of the UDR,
Laurence McClure, Johnny Mitchell, another Reserve Constable
in the RUC and McClure's brother who was not a member of the
security forces. The statement also made links between this
incident and other attacks allegedly carried out by members
of the security forces, both RUC and UDR, and loyalist
paramilitaries. This group used the farmhouse in Glennane
owned by James Mitchell, a RUC reservist, as a base from
which to carry out attacks on Catholics and nationalists.
Other attacks allegedly included the murder of Colm
McCartney and Sean Farmer at a bogus vehicle checkpoint in
August 1975 (see application no. 34575/04); the attack on
Donnelly's Bar in which Trevor Brecknell, Michael Donnelly
and Patrick Donnelly were killed (see application no. 32457/04);
and the murder of Joseph, Barry and Declan O'Dowd and
wounding of Barney O'Dowd (see application no. 34622/04).
Weir also linked these attacks to the Dublin and Monaghan
bombings in which 33 people were killed in the Republic of
Ireland.
19. On or about 10 June
1999, RTE, an Irish television channel, broadcast a
television programme that contained allegations of security
force involvement in a number of deaths, including that of
Trevor Brecknell. Weir made allegations on that programme
that members of the RUC and UDR were directly involved in
the attack on Donnelly's Bar. A BBC Spotlight programme
produced a similar documentary dealing with these
allegations.
20. These allegations
attracted considerable attention on both sides of the Irish
border and became the subject of police investigation in
both jurisdictions. The Government stated that the police
investigation in Northern Ireland was focussed on
determining whether Weir's allegations should be assessed as
sufficiently credible to require a full investigation. They
obtained from the journalist an edited transcript of the
interview with Weir. While his whereabouts were unknown to
the RUC, Weir met with senior Irish police officers at the
Irish Embassy on 15 April 1999. A copy of his statement was
provided by the Garda to the RUC, along with a further
statement made by Weir to another journalist dated 3
February 1999. The police analysed the available materials
and sought to identify the personalities to be interviewed.
It became apparent that some had died and that others,
living abroad, could not be traced. A series of seven
interviews were conducted, under cautions, between July and
December 2001, of those individuals central to Weir's
account who could be traced. No charges were preferred. The
interviews followed the format of Weir's allegations being
put to the interviewee for his or her response. The
predominant response was denial of any involvement and
claims that Weir had been untruthful. No admissions were
made by any interviewee. Interviews were also conducted with
less central personalities and with police officers involved
in interviewing Weir in 1978. The latter stated that Weir
had not mentioned the matters now being alleged.
21. Meetings were held
regularly with RUC counterparts in the Republic of Ireland.
The RUC co-operated also with the judicial inquiry
established in the Republic of Ireland into the Dublin and
Monaghan bombings (see the description of the inquiry in the
case of Brecknell
referred to above). Amongst matters about which the RUC team
provided information to the inquiry was ballistics
information which linked some of the weapons used to more
than one incident. In February 2000 a substantial report was
compiled by the RUC for the Garda dealing with Weir's
allegations. It profiled Weir and dealt inter
alia with a description of the 1978 investigation
into McCaughey, Weir and others. It concluded that the
investigation would continue but that his credibility was in
doubt. According to the Government, despite inquiries being
conducted, Weir's whereabouts could not be traced. This
report was not disclosed as the investigation was
continuing. An internal RUC report dated 27 February 2001
concluded that it would be necessary to interview Weir
before any view could be finalised in respect of the
credibility of his allegations: such interview was not
possible as his whereabouts were not known. The report noted
the absence of any previous mention of the allegations
before 1999 and that much of what he said was hearsay and
speculation. Enquiries made of the British Embassy in
Nigeria (where he had a known address) and the criminal
intelligence service and others failed to locate Weir.
Contact was made with the Garda and the secretariat of the
Inquiry into the Dublin and Monaghan bombings without
positive result.
22. The Serious Crime
Review Team (“SCRT”) was established in March 2004, with
responsibilities including the review of all historical
murders by way of case assessment for evidential and
investigative opportunities.
23. Unlike the other case
(Brecknell, Reavey, O'Dowd and McCartney, cited above), the
Rock Bar case was not referred to the SCRT. This was because
it was not a murder case and there had been four
convictions. Nonetheless because of connections with other
cases, the case was also referred to the Historical Enquiry
Team (HET). The HET director of Investigations, Detective
Chief Superintendent James of the London Metropolitan Police
Force, took over personal supervision of the investigation
which has progressed through the first three of five stages
of the HET process (collection of all relevant material;
assessment of the investigations to date; review of
evidence, with intelligence and open and non-police sources,
together with a meeting with the families of the victims of
the attack). As a number of investigative opportunities were
identified and to be followed up, the case was to continue
to be processed by HET, which had been put in touch with
Weir by the Centre. The Government submitted that if any
evidence of police involvement in the murders was found, the
Office of the Police Ombudsman for Northern Ireland would
then become involved. The Government have provided recent
information that Weir finally agreed to meet with the HET in
Dublin; he refused, however, to make a written statement or
to give evidence in court.
There has been contact between
the police and the applicant, as well as with the Centre
acting on behalf of a number of concerned families. In
particular, there were meetings in September 2002 with
Detective Chief Inspector Paterson, and a meeting with the
Chief Constable in June and August 2004; in May 2006,
Detective Chief Superintendent James met the applicant
together with the person who owned the bar at the time; and
there has also been extensive correspondence with the
families or their representatives.
D. Application for
judicial review concerning the inadequacy of the
investigation
See Brecknell,
cited above (§§ 39-41).
E. Reports of the
Independent Commissions of Inquiry (Republic of Ireland)
See Brecknell,
cited above (§§ 42-49).
THE LAW
I. ALLEGED
VIOLATION OF ARTICLE 2 OF THE CONVENTION
24. The applicant
complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of
the shooting in which he was seriously injured after
allegations were made in 1999 by John Weir as to RUC
involvement, invoking Article 2 of the Convention which
provides:
“1. Everyone's right to
life shall be protected by law. No one shall be deprived of
his life intentionally save in the execution of a sentence
of a court following his conviction of a crime for which
this penalty is provided by law.
2. Deprivation of life
shall not be regarded as inflicted in contravention of this
article when it results from the use of force which is no
more than absolutely necessary:
(a) in defence of any
person from unlawful violence;
(b) in order to effect a
lawful arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully
taken for the purpose of quelling a riot or
insurrection.”.
A. The parties'
submissions
25. The parties'
submissions essentially repeat those made in the Brecknell
case (cited above, §§ 54-59, 60-64).
B. The Court's assessment
26. The Court refers to
its statement of principles and analysis as set out in Brecknell
(cited above, §§ 65-81). For the same reasons it concludes
that the investigative response to Weir's allegations lacked
the requisite independence in its early stages when under
the control of the RUC. There has been, in that respect
alone, a violation of Article 2 of the Convention.
II. ALLEGED
VIOLATION OF ARTICLE 13 OF THE CONVENTION
27. In view of its
findings above, the Court finds that it is not necessary to
examine separately the complaint under this Article.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
28. Article 41 of the
Convention provides:
“If the Court finds that there has
been a violation of the Convention or the Protocols thereto,
and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the
injured party.”
A. Damage
29. The applicant claimed
non-pecuniary damage for the suffering and distress caused
by the State's failure to conduct an effective official
investigation into the circumstances of the shooting.
30. The Government
submitted that even if there was a breach of the procedural
obligation it would not be appropriate to apply the same
scale as in cases of procedural breaches in the immediate
aftermath of a use of lethal force. They considered a
finding of a violation should be held in itself to
constitute just satisfaction. Alternatively, any award
should be modest.
31. The Court has found
that the national authorities failed in their obligation to
provide a properly independent investigative response in the
initial stages following the allegations made by John Weir.
In the circumstances, it considers that the applicant
sustained some non-pecuniary damage which is not
sufficiently compensated by the finding of a violation of
the Convention. Making an assessment on an equitable basis,
the Court awards the sum of EUR 5,000.
B. Costs and expenses
32. The applicant claimed
GBP 10,298.29 for solicitors' costs, inclusive of value
added tax (VAT) for this application.
33. The Government
submitted that the overall solicitors' charging rate (with
an uplift of 50% for care and conduct) was excessive, and
half the amount was appropriate. The overall hours claimed
were also excessive given that similar issues arose in the
four other cases considered at the same time. They proposed
no more than GBP 20,000 for solicitors' costs in total for
all four cases together.
34. The Court recalls that
only legal costs and expenses found to have been actually
and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention
(see, among other authorities, Nikolova
v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79,
and Smith
and Grady v. the United Kingdom (just satisfaction),
nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX).
35. The Court has already
awarded EUR 29,000 for solicitors' costs in the Brecknell
case (§ 92). Having regard to the fact that only the
initial presentation of facts in this case required separate
treatment from the lead application, it awards the applicant
EUR 5,000, which figure is inclusive of VAT.
C. Default interest
36. The Court considers it
appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Holds
that there has been a violation of Article 2 of the
Convention due to the lack of independence of the RUC during
the initial stages of the investigation begun in 1999;
2. Holds
that it is not necessary to examine separately the
applicant's complaint under Article 13 of the
Convention;
3. Holds
(a) that the
respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the
Convention, the following amounts to be converted into
pounds sterling at the rate applicable at the date of
settlement;
(i)
in respect of non-pecuniary damage, EUR 5,000 (five thousand
euros);
(ii)
in respect of costs and expenses, EUR 5,000 (five thousand
euros);
(b) that from the
expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage
points;
4. Dismisses
the remainder of the applicant's claim for just
satisfaction.
Done in English, and
notified in writing on 27 November 2007, pursuant to Rule 77
§§ 2 and 3 of the Rules of Court.
T.L. Early Josep
Casadevall
Registrar President
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