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FOURTH
SECTION
CASE
OF REAVEY v. THE UNITED KINGDOM
(Application
no. 34640/04)
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 Reavey 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. 34640/04) 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, Ms Sarah Reavey (“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 the shooting of her three sons, nor any effective
remedy for the same. She 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 1923 and lives in Whitecross, County Armagh. She was the
mother of John Reavey, Brian Reavey and Anthony Reavey.
A. The attack on the
Reavey home and the initial investigation
7. On the evening of 4
January 1976, John Reavey, Brian Reavey and Anthony Reavey,
sons of the applicant, were at home watching television.
Between 6.05-6.10 p.m., three gunmen entered the house and
shot all three brothers. Brian was shot three times in the
back and once in the legs; John was hit by 14-16 9mm bullets
in the neck and body: the autopsy report concluded that
death would have been rapid in both cases. Anthony was hit
six times in the legs. When the gunmen had gone, Anthony
made his way to a neighbour's house to give the alarm. He
later died of a brain haemorrhage in hospital on 30 January
1976, the autopsy report concluding that the wounds that he
had received had played no part in his death.
8. On the same night,
three other Catholics, Barry O'Dowd, Declan O'Dowd and
Joseph O'Dowd were shot and killed in County Down, about
twenty minutes after the attack on the Reaveys (see
application no. 34622/04).
9. Shortly after the
events, police arrived at the scene and secured it. An
ambulance removed the bodies.
10. Detectives arrived at
the scene at 7.25 pm.
11. At 7.40 pm officers
went to a vehicle on fire and on its being extinguished took
the remains to a garage for inspection. Scene of crime
officers examined the scene, recovering a number of spent
cartridge cases and bullet heads and one live round, which
were sent for examination.
12. Forensic examination
established that four weapons had been used in the attack,
three of which had been used in previous incidents. Police
believed the murders were carried out by the Ulster
Volunteer Force (“UVF”), a proscribed loyalist
paramilitary organisation.
13. House to house
inquiries were carried out in the area and along the
suspected escape route, and liaison made with officers
involved in other killings of Catholics in the area. Nothing
of evidential value was obtained. A number of known loyalist
activists were arrested and interviewed about the murders
but no admissions were made. The police sent a report to the
DPP on 4 March 1976. As no person had been identified as a
perpetrator no-one was charged.
14. Inquests were held on
28 January 1977. Open verdicts were returned.
B. The investigations concerning
McCaughey and Weir
15. 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. The police arrested a reserve police constable,
William 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 that a police officer was involved in the
Reavey murders. This officer was arrested and questioned. He
was charged with serious offences, resigned from the police
and was subsequently convicted.
16. 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
ballistic examinations of weapons used. Nine suspects were
arrested in total, including five police officers and all
were eventually charged with offences.
17. 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.
18. Apparently around this
time, the applicant stated that Chief Superintendent Gerry
McCann of the Royal Ulster Constabulary ("RUC")
initiated a meeting with a member of the Reavey family and
told him that he believed that two McClures (one of whom was
Laurence McClure, a former Reserve Constable in the RUC) and
James Mitchell, also a former Reserve Constable, were
involved in the attacks on the Reaveys as well as the
attacks on Donnelly's Bar (19 December 1975- see Brecknell
v. the United Kingdom, no. 32457/04 ) and the Rock
Bar (5 June 1976: see McGrath
v. the United Kingdom, no. 34651/04). He also named
Robert McConnell (a former part time member of the Ulster
Defence Regiment, the “UDR”) as the gunman who entered
the house first. He said that one of the men was going to
turn Queen's evidence if convicted of the Rock Bar attack,
an apparent reference to Laurence McClure.
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
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 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); the murder of Joseph, Barry and Declan O'Dowd and
wounding of Barney O'Dowd (see application no. 34622/04);
and the attack on the Rock Bar in which Michael McGrath was
seriously injured (see application no. 34651/04). 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. Amongst
those interviewed by the police in the course of the
preliminary investigation of Weir's allegations, one person
was questioned about the Reavey murders. He denied any
involvement and made no admissions.
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
Brecknell
case 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.
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 inquiry 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 on 21 January
2000 with Chief Superintendent McCann; on 19 December 2001
with Detective Inspector Aiken and in November 2002 with
Detective Inspector Williamson; and in June and August 2004
with the Chief Constable; members of HET met with families
or their representatives on 5 April and 3 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 applicant
complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of
her sons' death 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 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 her sons' 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 applicant's sons. 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
35. The applicant claimed
GBP 7,358.97 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 applicant
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
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 together with any tax that may be chargeable;
(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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