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FOURTH
SECTION
CASE
OF O'DOWD v. THE UNITED KINGDOM
(Application
no. 34622/04)
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 O'Dowd 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. 34622/04) 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 Mr Bernard O'Dowd and Mr Michael Gabriel O'Dowd, Irish
nationals, (“the applicants”), on 10 September 2004.
2. The applicants were
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 applicants alleged
that there had been no adequate investigation into
allegations of collusion and/or involvement by security
forces in the killing of their relative, nor any effective
remedy for the same. They invoked Articles 2 and 13 of the
Convention.
4. By a decision of 6
March 2007 the Court declared the application admissible.
5. The applicants and the
Government each filed observations on the merits (Rule 59 §
1).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
6. The first applicant
Bernard O'Dowd, who was born in 1923 and lives in Drumnee,
County Meath, Ireland, was the father of Barry O'Dowd and
Declan O'Dowd. The second applicant Michael Gabriel O'Dowd,
who was born in 1951 and lives in Bleary, was the son of
Joseph O'Dowd.
A. The attack on the
O'Dowd home and the initial investigation
7. On the evening of 4
January 1976, the first applicant was hosting a family
get-together at his home in Ballydougan, County Down. At
about 6.30 p.m. three masked gunmen forced their way into
the house. Barry O'Dowd, Declan O'Dowd and Joseph O'Dowd
were shot and killed. The first applicant was hit by nine
bullets but survived. About thirty shots were fired during
the incident. No organisation claimed responsibility for
their deaths. The same night an attack was launched on the
home of another Catholic family in Armagh, in which John and
Brian Reavey were killed and Anthony Reavey was injured.
8. The three men were
believed to have made their getaway in a Morris 1300 car,
3315XZ, stolen earlier from Robert Street, Lurgan.
9. The emergency services
– police and ambulance – arrived within a short time.
Detectives and Scene of Crime Officers commenced
investigations. Post-mortems were held. House to house
inquiries were conducted in the area and along the suspected
getaway route with negative results. Nineteen spent bullet
cases were recovered at the scene and the weapon used was
identified as one used in four other attacks. Numerous
witnesses were interviewed, including members of the family
who were interviewed at length. Ronan O'Dowd stated that he
had observed two men standing beside a red car, possibly a
“1300”, close to the house, both men were masked and had
“walkie talkie” radios. Cathal O'Dowd stated that he had
observed a blue coloured “Viva” car near the house that
afternoon.
10. Several days before
the attack, Ronan O'Dowd had seen masked men running up a
lane adjacent to the house, in what the applicants believed
was a dummy run for the attack. The family also recollected
seeing officers of the Royal Ulster Constabulary (“RUC”)
and Ulster Defence Regiment (“UDR”) in fields near the
house the day before the attack, which was an unusual
occurrence.
11. Police inquiries
revealed that a red Morris 1300 had been stolen from Lurgan
on 4 January 1976; it was found burnt out on 5 January 1976.
Inquiries in Lurgan proved negative. No further information
was received on the “Viva” car.
12. Three men were
arrested by the police on 5 January 1976 and questioned
about the murders. They were released on 8 January 1976 and
no charges were preferred.
13. On 20 January 2006,
the first applicant stated that one man who had entered the
house was similar in appearance to a man whom he named. The
man was arrested, questioned but eliminated from the inquiry
following verification of his alibi.
14. In May-June 1976, the
police questioned the first applicant and asked him to
identify a weapon. He identified the weapon as one used in
the attack. He was told that it was linked to Robin Jackson,
a prominent loyalist paramilitary and to a number of other
loyalist attacks.
15. An Inquest held on 11
February 1977 returned open verdicts.
B. The investigations
concerning McCaughey and Weir
16. After 1976 there were
no further developments in the O'Dowd murders until 1999
when John Weir made allegations of police involvement in a
range of loyalist terrorist incidents including the attack
on the O'Dowds.
17. In the course of an
investigation in 1978, the police had arrested a reserve
police constable, William McCaughey, who, in the course of
questioning, revealed his part in the abduction of a priest
and in a variety of other loyalist paramilitary incidents.
McCaughey's revelations gave 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 ballistics examinations of weapons used. Nine
suspects were arrested in total, including five police
officers and all were eventually charged with offences.
18. 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
19. 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”).
20. 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 Robin Jackson had carried out the murders in
the O'Dowd home and that the attack had been co-ordinated
with the attack on the Reavey family the same night in which
security force personnel participated directly. The
statement also made links between these incidents 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 John and Brian Reavey and
wounding of Anthony Reavey in their home on 4 January 1976
(see application no. 34640/04); 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
attack on the Rock Bar in which Michael McGrath was
seriously injured (see application no. 34561/04). Weir
also linked these attacks to the Dublin and Monaghan
bombings in which 33 people were killed in the Republic of
Ireland.
21. 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.
22. 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.
23. 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. Inquiries 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.
24. 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. A preliminary case assessment
was carried out by a detective chief inspector, who audited
all known information and documentation.
25. In light of the
preliminary assessment, the case was referred to the
Historical Enquiry Team (HET). On 28 April 2006, a Senior
Investigating Officer reported on the further review; a
number of potential lines of enquiry were identified and
recommendations made, including that the HET should
extensively interview Weir. This recommendation was
approved. 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.
26. There has been contact
between the police and family members, their solicitors or
the Centre. 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; members of
HET met with families or their representatives on 29 March
and 31 May 2006; 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
27. The applicants
complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of
their relatives' deaths 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
28. The parties'
submissions repeat those made in the Brecknell
case (cited above, §§ 54-59, 60-64).
B. The Court's assessment
29. 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
30. 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
31. 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
32. The applicants 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 their relatives'
deaths.
33. 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 death. They considered a finding of a violation
should be held in itself to constitute just satisfaction.
Alternatively, any award should be modest.
34. 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
concerning the deaths of the applicants' relatives. In the
circumstances, it considers that the applicants 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
each applicant the sum of EUR 5,000.
B. Costs and expenses
35. The applicants claimed
GBP 7,721.34 for solicitors' costs, inclusive of value added
tax (VAT) for this application.
36. 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.
37. 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).
38. 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
applicants EUR 5,000, which figure is inclusive of VAT.
C. Default interest
39. 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
applicants' complaint under Article 13 of the
Convention;
3. Holds
(a) that the
respondent State is to pay the applicants, 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) each;
(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 applicants' 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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