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BRECKNELL v. THE UNITED KINGDOM - 32457/04 [2007] ECHR 989 (27 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/989.html
Cite as:
[2007] ECHR 989,
46 EHRR 42,
(2008) 46 EHRR 42
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FOURTH
SECTION
CASE OF
BRECKNELL v. THE UNITED KINGDOM
(Application
no. 32457/04)
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 Brecknell 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
The
case originated in an application (no. 32457/04) 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 Ann Brecknell (“the applicant”), on 10
September 2004.
The
applicant, who had been granted legal aid, 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.
The
applicant alleged that there had been no adequate investigation into
allegations of collusion and/or involvement by security forces in the
killing of her husband, nor any effective remedy for the same. She
invoked Articles 2 and 13 of the Convention.
By
a decision of 6 March 2007, the Court declared the application
admissible.
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
The
applicant was born in 1933 and lives in Armagh. She is the widow of
Trevor Brecknell.
A. The attack on Donnelly's Bar and the initial
investigation
On
19 December 1975, loyalist gunmen arrived at Donnelly's Bar,
Silverbridge, in County Armagh and fired a machine gun at persons
outside the bar. Two men entered the bar. One sprayed the room with
automatic gunfire and the other threw a bomb into the premises.
Trevor Brecknell, Patrick Donnelly and Michael Donnelly (aged 14)
were killed and six other people received serious injuries. The
applicant was at the time in hospital following the birth of her
daughter and was informed of her husband's death by the hospital
chaplain and her doctor.
The
emergency services and the police were alerted to the incident within
a short time. While the dead and injured were being removed from the
scene, soldiers of the Royal Scots Regiment were stoned upon their
arrival and had to withdraw. As a consequence of the hostile
reception, police decided not to investigate the scene until first
light.
On
20 December, detectives and scene of crime officers attended the
scene. Items were taken for forensic examination, including 9mm spent
cartridge cases. A number of persons who had been in the bar on the
previous night were spoken to and later statements were taken from a
substantial number of the customers who had been there during the
incident. The Government believed that all had been spoken to but
that some would only give detectives an oral account.
The
bodies of the deceased were identified and post mortems held.
A
claim of responsibility for the incident was subsequently made by the
Red Hand Commandos, an illegal loyalist paramilitary organisation.
The
Government stated that despite the efforts of the police it was not
possible to identify any particular suspect. No one had witnessed the
arrival of the gunmen on the night of the attack. While a Ford
Cortina car had been seen moving away from the location after the
attack no one was able to identify this vehicle as belonging to the
gunmen or as being used by them as a getaway vehicle. Although
conversations with customers in the bar had led to a photofit picture
being compiled this did not lead to anyone being connected with the
incident. The view of the investigating officer at the time was that
extreme loyalist elements from the Portadown area were likely to be
responsible. It was believed that some persons in this category were
arrested and interviewed but without any positive outcome. A report
was prepared for the Director of Public Prosecutions who, in the
absence of any evidence linking individuals to the incident, did not
direct any prosecution to be brought.
On
26 November 1976 an inquest was held into the deaths of the three
deceased persons.
The
applicant was first contacted by the police three days after the
murder. The investigating officer of the Royal Ulster Constabulary
(“RUC”) who returned her husband's personal effects told
the applicant that the police knew who was responsible for the attack
but that they all had alibis that they were playing pool in
Markethill at the time of the murder. There was no further contact by
the RUC with the applicant concerning the case at this time.
B. The investigations concerning McCaughey, Weir,
McClure and Shields 1978-1981
The
investigation into the attack on Donnelly's Bar 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. A number of other
arrests followed, including that of 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. 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.
McCaughey,
however, did name a RUC reserve officer Laurence McClure as being
involved in a range of incidents including the attack on Donnelly's
Bar.
McClure
was arrested along with a woman called Elizabeth or Liz Shields.
After questioning, both admitted to driving three persons, McConnell,
who was a member of the Ulster Defence Regiment and two other unknown
persons on the night of the incident. While admitting to knowing that
the three persons must have been engaged in illegal activity they
claimed that they did not know the details and only after the event
were able to relate the picking up of these persons to the incident
at Donnelly's Bar. McClure and Shields were charged with offences
under section 5 of the Criminal Law Act (Northern Ireland) 1967 –
failure to disclose information relating to an offence. McConnell had
by this date been murdered by the IRA and it was not possible to
identify the other two persons in the car. In April 1981 the DPP made
a decision not to pursue the charges against McClure and Shields.
This decision was based on the receipt of an opinion of senior
prosecuting counsel and was based on a series of factors: the delay
in bringing the case to trial, the disposal of charges against others
accused of offences arising from the investigation into McCaughey's
revelations, the absence of a prospect of a custodial sentence and
the impact of a judgment of Jones LJ cited in another case (R v
Donnelly [1986] NI 54) which was viewed as eliminating any
reasonable prospect of conviction as a legal defence was available to
the accused on a charge of withholding information.
C. The Weir allegations and the response of the
authorities
In
or about January 1999 John Weir, who had been released from prison on
licence in 1993, 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 (hereinafter “the
Centre”). A copy was provided by the Centre to Alan Brecknell,
Trevor Brecknell's son.
John
Weir's statement made detailed allegations about security force
collusion with loyalist paramilitaries, including the allegation that
he had been told by McClure, a former reserve constable in the RUC,
that Mitchell's farmhouse owned by another RUC officer was used as a
base from which to carry out loyalist attacks, including the attack
on Donnelly's Bar in Silverbridge. Weir also alleged that Stuart
Young, Sammy McCoo, Shilly Silcock [suspect T] and Robert McConnell
(a part-time UDR member) were responsible for the attack and that the
getaway car was provided by Laurence McClure and Elizabeth Shields.
He alleged that after the attack the group re-assembled at Mitchell's
farmhouse.
The
statement also made links between the attack on Donnelly's Bar 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 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 Joseph, Barry and
Declan O'Dowd and wounding of Barney O'Dowd in the latter's home in
January 1976 (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.
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.
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.
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
further below). 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.
In
November 2003, a further report was written for the Assistant Chief
Constable (Crime Operations) in respect of Weir's allegations. This
also could not be disclosed due to the ongoing investigation but the
Government have stated that this focussed directly on the attack on
Donnelly's Bar, noting that Weir had mentioned the names of six
persons, three of whom were known to have played a role in the
attack. It noted that it was difficult to advance inquiries without
interviewing Weir and recommended that there should be an overall
review of the file on the attack and that the case be examined by the
Serious Crime Review Team (“SCRT”) so that it could be
determined whether the investigation should be reopened. This
recommendation was accepted. The 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. It carried out a preliminary case review culminating
in a report dated 14 June 2005 by Detective Inspector Ramsay of the
Police Service Northern Ireland (“PSNI”). His view was
that the investigation if looked at alone could not be progressed but
that in the context of linked cases might be worth further
exploration. He suggested a referral of the case for further
assessment. The Historical Enquiry Team (“HET”) director
of Investigations, Detective Chief Superintendent James of the London
Metropolitan Police Force, took over personal supervision of the
investigation which 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. For the
latest information from the Government concerning the investigation,
see their most recent observations, paragraph 64 below.
D. The position of the applicant and the concerned
families
Meanwhile,
in July 1999, Mr Donnelly, owner of the bar and father of one of the
people killed in the attack, informed the applicant's family that he
had received a summons to appear in court many years earlier. After
contact with the authorities by the applicant's lawyers and the
Centre, it appeared that in or about 1980 Laurence McClure, a RUC
reservist and Elizabeth Shields, housekeeper at Mitchell's farm, had
been charged with withholding information in relation to the murders.
McClure had been the person identified by Weir as the main source of
his information about security force collusion. The applicant and her
family had never been informed about these proceedings.
By
letters dated 5 July and 10 November 1999, the Northern Ireland
Office informed the Centre that the allegations made by Weir and
shown on the RTE programme were under investigation by the RUC.
On
31 January 2000, the Centre was informed by Chief Superintendent
Sillery, on behalf of the Chief Constable, that charges against two
persons connected with the attack had been dropped. This followed a
meeting on 22 January, when relatives of Trevor Brecknell and
others killed at Donnelly's Bar met with Chief Superintendent McCann
of the RUC, who had been the investigating officer in that incident
and also for the murders of the Reavey family. He advised the
relatives and a member of the Centre that as a result of his
investigations he believed that there had been collusion between the
loyalist paramilitaries and members of the security forces (RUC and
UDR) and that the gang that had carried out the attack included
security force personnel. While he was sure of the identities of the
gang members, one of whom he named as Sammy McCoo, a well-known
loyalist extremist, he considered however that there had been
insufficient evidence available to convict; he dismissed suggestions
of any conspiracy or any policy to block from above and gave his view
that the charges against McClure and Shields had been thrown out for
lack of evidence. He commented that some of those involved were now
dead and one was very old, in his seventies.
By
letter dated 31 January 2001, the Northern Ireland Office informed
the Centre that the police were not investigating the attacks on the
bar and that the current police inquiry centred on establishing the
veracity of the disclosures made by John Weir and whether or not any
further investigation was justified. The family would be informed if
a further investigation was found to be warranted.
On
18 February 2001, members of the Centre met with John Weir in Paris.
He made links between the attack on Donnelly's Bar and the other
incidents above. He named Stuart Young, Sammy McCoo, Shilly Silcock
and Robert McConnell (a part-time UDR member, allegedly working with
the army and SAS) as carrying out the attack on the bar and
considered that the security forces would have known about it. He
mentioned that McConnell had been shot dead in a later incident.
During
this period the Centre was in contact with the police (which had
changed name from the RUC to the Police Service of Northern Ireland
“PSNI”) seeking to have questions answered about the
original investigations into the various incidents. On 19 December
2001, a meeting was held between members of the Centre and Detective
Inspector Aiken. Questions were put by and on behalf of the families
concerning the investigations into the incidents. A request was made
by the Brecknell family to have access to the investigation file.
The
applicant's representatives made further requests for access to the
police investigation file, on 29 May 2002 to the DPP and the
Secretary of State and on 19 September 2002 to the PSNI.
On
28 October 2002, the PSNI wrote to the applicant's solicitors:
“(i) The investigation into the allegations made
by John Weir has been advanced as far as possible at this stage –
this investigation focussed on establishing the veracity of
allegations made by John Weir and whether or not there is any
justification for further investigation.
(ii) There are a number of discrepancies contained
within the allegations made by John Weir and he has not made himself
available to PSNI detectives for further interview in an effort to
clarify these discrepancies. He is presently living outside the
jurisdiction.
(iii) As a consequence of an investigation in 1978,
former Reserve Constable Laurence McClure and civilian Sarah
Elizabeth (Lily) Shields were interviewed and admitted that they had
conveyed three other persons, including Robert McConnell (now
deceased) from the area... about eight miles from Donnelly's Licensed
Premises to Mitchell's farm. Neither person was able to identify the
other two persons collected. The allegations made by Weir in relation
to this incident are similar to the facts disclosed by McClure and
Shields during interview and would have been in the public domain at
the time of the court case. The names of Stuart Young, Sammy McCoo
and Phillip Silcock have been given by Weir as also involved –
these personalities would have been known to John Weir.
(iv) Much of what John Weir alleged is based on hearsay
allegedly having been told to him by other police officers, including
the former Reserve Constables McClure and James Mitchell. Those
persons have been re-interviewed and deny all Weir's allegations,
other than what they admitted during the 1978 investigation. As
previously stated, there are a number of allegations made by John
Weir which detectives would like to clarify with him but because he
is outside the jurisdiction, this has not been possible to date.”
On
20 November 2002, a further meeting was held with Detective Chief
Inspector Williamson attended by members of the Centre and the
Brecknell family as well as relatives of victims of other incidents,
in which questions were asked about the investigation and prosecution
inter alia in the Brecknell case.
On
11 December 2002, the applicant's solicitors requested the Secretary
of State for Northern Ireland to conduct an Article 2-compliant
investigation into the allegations made by John Weir, in particular
submitting that it was not compatible with Article 2 that it was the
PSNI that had conducted the investigation into the allegations
implicating RUC officers. They also submitted that an investigation
was required to be prompt, public and accessible, that the relatives
be kept fully informed of the course of the investigation and
involved to the fullest extent and that they should receive full
disclosure of the documents relating to the investigation.
On
29 January 2003, the Centre requested on behalf of the families
involved, ballistics information about the guns used in the various
attacks. On 3 October 2003, the PSNI replied that such information
was not given out as it could prejudice the trial of any person
charged in the future but that if an individual family could show how
they might be prejudiced by non-disclosure the Chief Constable would
give the matter full consideration.
On
30 April 2003, the applicant's solicitors wrote to the DPP requesting
inter alia copies of the admissions made by Laurence McClure
and Elizabeth Shields and an explanation as to why no prosecution had
been brought. On 9 May 2003, the DPP stated that the fact that a
custodial sentence was not likely was not the only factor in the
decision not to prosecute, while on 12 May 2003, the DPP referred
them to the PSNI regarding the statements and on 22 May 2003 refused
to provide them.
In
June and August 2004, the Centre had meetings with the Chief
Constable of the PSNI, aimed at persuading him to recommence
investigations in these cases and to discuss a way forward. No
commitment was made, although the Chief Constable expressed the view
that if an investigation was carried out it would be conducted from
within the PSNI.
Repeated
requests for information concerning the investigation and for access
to the file met with the response that the matter was under
consideration by the SCRT (letters of 14 December 2004 and 9 February
2005).
E. Application for judicial review concerning the
inadequacy of the investigation
On
or about 1 April 2003, the Brecknell family applied for permission to
apply for judicial review inter alia for a declaration that
there had been no adequate investigation into the death of the
applicant's husband as required by Article 2 of the Convention and
requiring that the Secretary of State provide for an Article
2-compliant investigation. Leave was granted by the High Court on 30
April 2003. The proceedings were adjourned pending the outcome of
another case
On
11 March 2004, the House of Lords held in the case of McKerr v.
the Secretary of State for Northern Ireland that a complainant
alleging a procedural breach of Article 2 could not bring a complaint
under the Human Rights Act 1998 unless the death in question occurred
on or after 2 October 2000, when that Act came into force. This
overturned the decision of the Northern Ireland Court of Appeal on 10
January 2003 to the effect that the obligation to provide an
effective investigation was a continuing one.
On
3 September 2004, following an application by the Secretary of State
to set aside the grant of leave in the applicant's case, the
Brecknell family withdrew their application for judicial review.
F. Reports of the Independent Commissions of Inquiry
(Republic of Ireland)
1. The report into the Dublin and Monaghan bombings
Meanwhile
in October 2003 the Report of the Independent Commission of Inquiry
into the Dublin and Monaghan bombings (known as the Barron Report)
was given to the Taoiseach of the Republic of Ireland. The report was
made public on 10 December 2003. The Independent Commission had taken
into account interviews by the Irish police with John Weir in 1999
(concerning allegations of offences in the Irish Republic), a
memorandum of a meeting between an organisation known as the Justice
for the Forgotten and John Weir in 1999, a transcript of audiotapes
sent by Weir to Justice for the Forgotten in June 2000 and the
inquiry's own interview with John Weir on 15 and 16 February 2001.
The Report listed sectarian attacks alleged to have a link with the
“Glennane group” of known paramilitaries and members of
the RUC and UDR, including the murder of the applicant's husband. It
noted:
“John Weir's allegations have been subject of
inquiries by both the RUC and [the Irish police]. These inquiries
have relied on shared information, for the most part obtained by the
RUC. Despite this, the RUC and [the Irish police] have arrived at
markedly different conclusions regarding his credibility as a
witness.”
The
Report referred to a report sent by the RUC on 14 February 2000 to
the Garda team investigating Weir's allegations (see also page 10).
The RUC report concluded that as Weir was a convicted murderer his
credibility had to be in doubt and that the results of research did
not encourage any belief that he was now being genuine. The
Independent Commission did not find the RUC's reasons sufficient to
dismiss Weir's claims and it also noted a number of errors and
discrepancies: for example, the RUC claimed that Lily Shields was
dead whereas Garda enquiries revealed that she was still alive and
the information given did not take into account Special Branch
extracts, which indicated that James Mitchell knew ten named
loyalists who came to the farm, of whom six appeared in Weir's
allegations. Nor had the RUC paid sufficient attention to the
evidence which supported Weir's allegations. The Garda officers, in
contrast to the view formed by the RUC, found Weir “came across
as an intelligent and discerning man who is a very convincing
witness” and that he was “highly credible and had very
comprehensive details about the crimes he purports to have knowledge
of.” The Report concluded that :
“... in relation to the attacks on Donnelly's Bar
(Silverbridge).... John Farmer and Colm McCartney, the Reavey family
and the O'Dowd family, information was given by one or more of the
interviewees which confirmed Weir's account of who was responsible in
each case.”
The
Report mentioned that the Garda had, with the assistance of the RUC,
interviewed Mitchell, McClure, Shields, McCaughey and others
mentioned by Weir; they denied his allegations. While the Garda had
doubts as to their credibility, no further evidence was forthcoming
to implicate them in the incidents, beyond any statements already
made in other proceedings. The Report also set out ballistics
evidence provided by the RUC, indicating that there was a chain in
gun use between the attacks on Donnelly's Bar, the shooting of the
Reavey family, the murder of Farmer and McCartney and the attack on
the Rock Bar.
The
Report stated that:
“All this information leads strongly to the
conclusion that there were one or more groups operating in Northern
Ireland involving not only loyalist paramilitaries but also members
of the RUC and of the UDR, and using weapons obtained from the
central quartermaster to whom the guns were returned after use. ...”
2. The report into the Dundalk bombing
The
Independent Commission was also commissioned to investigate the
bombing of Kay's Tavern in Dundalk in the Republic of Ireland which
was bombed on 19 December 1975, the same date as the gun and bomb
attack on Donnelly's Bar, Silverbridge, in which Trevor Brecknell was
killed and which the Barron Report had found to be linked.
In
July 2006 the Commission issued an interim report. It found a number
of factors suggested that the two incidents were linked. Both attacks
were claimed by the Red Hand Commandos. The evidence before it was
not conclusive but suggested that the Dundalk bombing was carried out
by a group of loyalist subversives associated with the Mid-Ulster
Ulster Volunteer Force (“UVF”) with the assistance of UVF
members from the Shankill Road area of Belfast. As regarded the RUC
investigation, it noted that eight persons contacted by the Centre
stated that they had not given statements to the RUC and that it
seemed that no house-to-house inquiries had been made. According to
the owner of the bar, however, the investigating officer did keep in
touch with him as the investigation proceeded and he was satisfied
that the officer was genuinely trying to identify and arrest those
responsible. It was also noted that on 29 December 1975 the RUC made
a public appeal for anyone with information about the Silverbridge
attack to come forward, with particular reference to two cars that
had been seen in the area at the time. The information about the cars
had been forwarded to the Irish police.
The
report considered the further inquiries which followed in 1978-81 and
quoted parts of the statements given by McClure admitting involvement
in an attack on the Rock Bar and concerning a possible role in the
Silverbridge attack, when together with Lily Shields, he drove Robert
O'Connell and two other men on that night. Part of the statement of
Lily Shields was also quoted. The report also quoted extracts from
police Daily Record Sheets which indicated that William McCaughey
incriminated Sammy McCoo and [Suspect T] in the Silverbridge attack
while James Mitchell stated that O'Connell and some 'Portadown boys',
one of whom was named, as a guess, as McCoo, were involved. Noting
the lack of information about what had happened on 28 June 1980 when
the RUC had said that the charges against McClure and Shields were
marked “no prosecution” and about the judgment of Jones
LJ that was relied on (see page 8 above), it stated that “a
perception persisted that the case against McClure and Shields was
managed or dropped in order to reduce the culpability of the latter
when he came to be sentenced for his role in the Rock Bar attack”.
It also referred to a letter sent by the Centre to the Northern
Ireland Office, assessing McClure's admissions as going beyond
failure to provide information to giving actual assistance to the
perpetrators. It did not consider that correspondence from the
Northern Ireland Office, which set out reasons for not pursuing more
serious charges against the two accused and clarified that the DPP
had been aware at the time of Jones LJ's judgment, could be taken as
a complete answer to the allegations of managing the matter to lessen
McClure's perceived culpability in the Rock Bar attack.
It
was stated that before his trial for involvement in the attack on
Donnelly's Bar, on 30 June 1980, McClure had been sentenced to two
years' imprisonment, suspended for three years, for his involvement
in the attack on the Rock Bar (possession of an explosive substance
and firearms and ammunition with intent to endanger life).
G. Proceedings against the Director of Public
Prosecutions
On
14 April 2003, the applicant commenced proceedings against the DPP,
challenging various aspects of his decision-making in connection with
the decision not to proceed with the case against McClure and
Shields, in particular seeking orders to quash any decisions not to
prosecute, offer evidence or enter a nolle prosequi and to
quash his refusal to provide full and comprehensive reasons for not
continuing the prosecution and his refusal to make available copies
of their admissions The applicant also challenged the failure of the
DPP to exercise his statutory power under Article 6(3) of the
Prosecution of Offences (Northern Ireland) Order 1972 to conduct
further investigations into the death of Trevor Brecknell.
In
an affidavit from a senior officer of the Public Prosecution Service
dated 2 February 2006, it was stated that due to the considerable
vintage of the prosecutions in question the full facts relating to
the mechanism whereby the prosecutions were actually terminated could
not be established. It was known that the opinion of senior
prosecuting counsel was considered before a discontinuance direction
of 8 April 1981 was made. The effective decision maker had been the
then DPP Sir Barry Shaw who had retired some sixteen years before.
The senior Assistant Director involved in the decision, and author of
the discontinuance direction, had since died.
By
decision dated 23 May 2006, the High Court judge rejected the
applicant's application. He found that correspondence with the
Attorney General in April 2003 established that the Attorney General
had not issued a nolle prosequi. It appeared that a decision
was taken by the DPP not to offer evidence against the accused at
trial, which practice at the time was called, misleadingly, a nolle
prosequi. Noting that the offence occurred in 1975 and the
charges dropped in 1981 and that it had been clear throughout 2002
when the family and the Centre had been in contact with the police
that no further action on this matter would be taken, he commented
that the passage of time until bringing the judicial review
application in May 2003 was very considerable. However, if he was
wrong on the question of delay, the application still failed on the
merits. The application for disclosure of files failed on the
procedural ground that it was brought against the DPP, not the Chief
Constable who had control of the said files. The decision of the DPP
not to use his statutory power to direct a police investigation was a
matter of discretion and the decision could not be said to be
irrational or unlawful in the circumstances. As regarded reasons, the
DPP had departed from his practice and reasons had been given by his
officer in affidavit. In any event, the extent of the reasoning was a
matter for the DPP and the court could not make an order to require
the decision maker to give sufficient reasons to justify the decision
not to prosecute. In relation to the discontinuance of the
prosecution, the judge noted that the reasons included delay in
bringing the case to trial, the perceived unlikelihood of a custodial
sentence and "crucially the impact of a judgment in another case
which was judged to eliminate any reasonable prospect of a
conviction" which was a reference to the decision of Jones LJ
discussed in R v Donnelly [1986] NI 54. He considered that it
was evident that the decision was taken at the highest level and not
lightly. At this long remove, with the death and retirement of the
principal actors, it was not possible to establish that the decision,
which had a rational basis was Wednesbury irrational or
unlawful. He emphasised that a legal challenge of this kind directly
affected third parties, namely the two defendants against whom the
prosecution was dropped, and that it would be intrinsically unfair to
reach a decision adverse to their position without giving them an
opportunity to be heard - neither had been given notice of the
application – and such a decision might also, potentially, be
in breach of their rights or of the presumption of innocence. He
noted that the purported entry of a nolle prosequi by the
prosecution was admitted to be wrong in principle and law, as only
the Attorney General could do such. The court record and
documentation tended to suggest that the court was told that there
was a nolle prosequi. While it would have been open to the
prosecution merely to tender no evidence, this could have led to the
direction of an acquittal; it was less clear whether an acquittal
should have followed as a matter of law. He declined to give
declaratory relief as to the invalid nature of the purported nolle
prosequi due to the universal acceptance that this had been
inappropriate, the fact that this practice had ceased, the
applicant's delay and the absence of the accused as parties to the
application.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
The
applicant complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of her
husband's 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
1. The applicant
The
applicant did not invite the Court to assess the adequacy of the
original investigation into her husband's death, though, in answer to
the Government's submissions, she drew attention to the fact that
some eight potential witnesses had never given statements to the RUC
and that house-to-house enquiries had not been carried out. She also
disputed that McClure and Shields had only been implicated to the
degree of realising after the event that they had picked up the
persons involved in the attack: to the extent that she had been able
to see the statements, reproduced in the Dundalk report, the state of
knowledge of both McClure and Shields was such as properly to give
rise to a charge of murder, as McClure admitted knowing that a
shooting was involved and Shields realised that it had something to
do with “The Troubles”. She also considered that doubts
arose as to the circumstances in which a nolle prosequi had
been entered against McClure, there being no adequate explanation for
dropping these charges, the delay in proceeding with them or their
separation from other charges faced by him. She submitted that the
separation of these charges undoubtedly impacted on the sentencing
for the Rock Bar attack in which he only received a suspended
sentence.
As
regarded the investigation into Weir's allegations, which was the
subject-matter of her complaint, the applicant drew attention to the
discrepancies between the conclusions reached by the RUC and the
Barron Report as regarded credibility. The latter noted that the
Irish police who had interviewed Weir and had access to all the
information at the RUC's disposal found him a convincing witness.
This underlined, in her view, the lack of RUC independence, both
hierarchical and practical and the lack of an effective and thorough
investigation by the RUC. She pointed out that the PSNI did not come
into existence until November 2001 and in any event was largely a
continuation of the former organisation without hierarchical or
practical independence. In particular, she noted that the RUC officer
conducting the investigation in 1999 was denied access to the
information held by RUC Special Branch (e.g. the abstracts of
information from interview notes, themselves since lost, known as
Daily Record Sheets); the significant number of factual errors and
inaccuracies in the RUC report (e.g. it stated that Shields
was dead when she was in fact still living at Mitchell's farm); the
failure of the RUC report to draw sufficient attention to evidence
which supported Weir's stories; and the fact that discrepancies in
the accounts given by Mitchell in 1978 and 2000 were not explored,
while denials made by David Payne which were contradicted by his
previous convictions
were not followed up, thus showing that the interview process by the
RUC in 1999 was inadequate. Indeed, she asserted that the interviews
conducted by the RUC were only carried out at the behest of the Irish
police and that they were conducted in a manner which did not press
the interviewees in relation to their involvement in terrorist
activities and contributed to the conclusion that Weir lacked
credibility. Insofar as the Government claimed that it had not been
possible for the authorities to interview Weir themselves, she noted
that he had been easily accessible to journalists, the Irish Police
and the Independent Commission and that it had been possible for the
HET, some seven years later, to trace him using the Centre as a
conduit. Similarly the process of linking the weapons used in various
attacks only appeared to have been done at the behest of the
Independent Commission.
The
applicant also contradicted the Government's assertion that Weir had
never made reference to his allegations during the 1978
investigation, pointing to Weir's affidavit in which he stated that
he had provided some information to the RUC in 1978 but that they had
been uninterested. As shown by the failure to interview a named
suspect in the murder of Colm McCartney and John Farmer (see
application no. 34575/04), the RUC were not interested in a full
investigation into security force collusion with loyalists and had
closed down relevant lines of inquiry. The reports dated November
2003 to which the Government referred had not been made available to
the applicant.
The
applicant pointed out that Weir made his allegations in 1999 and that
the investigation into these matters did not therefore coincide with
examination of the deaths during “The Troubles” which was
carried out by the SCRT (established in March 2004) and by HET
(established in March 2005). There was no basis for suggesting a lack
of adequate resources.
The
applicant argued that an obligation arose to conduct an Article 2 -
compliant investigation due to the nature of the allegations made by
Weir, which were credible and from a person in a position to have the
relevant knowledge, and due to the fact that the RUC, in accordance
with domestic law, decided to conduct an investigation in 1999. The
Court's case-law established that such an obligation could arise
where circumstances, in particular the emergence of new evidence,
arose casting doubt on the original investigation or which raised new
or wider issues. The test for determining whether an investigation
was required was whether the nature of the evidence was such as to
make it reasonable to impose a duty on the authorities to investigate
that information or material or whether it was in the interests of
justice to impose a duty on the authorities to investigate the new
evidence. Further, where the state's own authorities determined that
an investigation was necessary, such investigation must necessarily
be Article 2 - compliant. The requirements of independence,
accountability and transparency, effectiveness, promptness and
expedition remained undiminished, even after the passage of time,
although the steps that could reasonably be taken might be influenced
by that factor. Also relevant was the nature and efficacy of any
earlier investigation and the nature of the new evidence. However the
investigation in this case, lasting over seven years, could not be
regarded as prompt. Commenced in July 1999, the RUC investigation
concluded in October 2003, then further work was undertaken prior to
transmission to the SCRT, the HET took up the case in April 2006
and the investigation was still ongoing. She noted that in any
event the HET was not carrying out a full effective investigation but
was only seeking to identify if further evidentiary opportunities
existed. Furthermore the applicant had not been informed by the RUC
of the investigation but only found out through the efforts of the
Centre to persuade the authorities to take action and since then
information had only been provided in a “drip-feed manner”.
She had obtained far more information from the Barron and Dundalk
Reports, the RUC and DPP refusing to provide her with information
which was provided to those inquiries.
The
applicant disputed the Government's claims that the evidence was not
sufficient to warrant further investigation or prosecution, pointing
out that the statements by McClure and Shields contained evidence
justifying further prosecution and that, in any event, the
investigation served not only the narrow aim of obtaining a
prosecution but in reassuring the public and relatives. She further
argued that the issue of police time and resources could not be used
to justify a failure to conduct an effective investigation.
2. The Government
The
Government submitted that no procedural obligation arose under
Article 2 to investigate Weir's allegations as these were made in
1999, over 20 years' after the event and long after the period for
fulfilment of the State's obligation of investigation had expired.
They pointed out that there had been a police investigation into the
murders immediately after they occurred, with an inquest; there had
also been a second police investigation in 1978-1981 in light of
allegations made and information provided by McCaughey and
information from McClure and Shields. There was no continuing
obligation to investigate after this initial period and any
complaints about these investigations would be out of time under
Article 35 § 1 of the Convention.
The
Government submitted that it was not open to an applicant to claim
that the procedural obligations could be revived each time
potentially relevant new evidence came to light. Such an approach
would fundamentally undermine the legal certainty which Article 35 §
1 was intended to achieve. Not only was it not acceptable for the
obligation to be revived after every new item of evidence, however
trivial, arose but also no sensible dividing-line based upon the
supposed quality of any further item of information received could be
spelled out in clear and certain terms, which would enable all
parties to know precisely where they stood in relation to whether the
obligation of investigation had revived or not. Nor could any new
investigation be wholly divorced in practical terms from those
carried out before and with the lapse of time, the inability to trace
complete files and lack of any useful recollection of details by
erstwhile investigators, there might well be no realistic prospect of
a further viable investigation that could reasonably be made the
subject of further supervision by the Court. There was, accordingly,
a powerful argument in support of the simple application of the clear
limitation rule in Article 35 § 1 of the Convention
(relying on McDaid and Others v. the United Kingdom, no.
25681/94, Commission decision of 9 April 1996, Decisions and Reports
(DR) 85-A, p. 134 and Walker v. the United Kingdom (dec.), no.
34979/97, ECHR 2000-I
In
addition, where positive obligations arose, the Court had stated that
no impossible or disproportionate burden should be placed on the
State; when with the passage of time the objective of identifying and
punishing those responsible for killing became less capable of being
achieved, the point would eventually be reached where it became
disproportionate to expect the State to devote scarce resources to
undertaking investigations unlikely to yield any significant gains.
To the extent that the case of Hackett appeared to support the
contrary approach, the Court had adopted its decision without the
benefit of argument on these points. In the present case, given a
lapse of some 24 years from the death in issue, there was no
realistic prospect that new material would be brought to light which
would be likely to allow the perpetrators to be prosecuted and
punished. Accordingly, no procedural obligation arose.
If
this submission was not accepted, the Government submitted in the
alternative that no procedural obligation arose as the allegations
made by Weir in 1999 were not such as to give rise to any reasonable
expectation that they would produce new evidence capable of
supporting a prosecution after the time which had elapsed and hence
were not of a character or substance which could trigger or revive
any procedural obligation of investigation. To do so, any new
evidence would have to be very weighty and, prima facie, compelling
in nature and hold out a serious or realistic prospect of a
successful prosecution, otherwise the State authorities would face a
disproportionate burden in investigating historic crimes, possibly to
the detriment of the investigation of recent crimes and the
prevention of future ones. In this case, the allegations made by Weir
about this incident were limited references, made indirectly to third
parties rather than to the authorities in Northern Ireland, based
largely on hearsay and speculation and not pointing to any source of
hard evidence. The most that could be done was to challenge the
individuals named by Weir who would inevitably deny them. Further,
Weir's credibility was seriously in doubt due to his own background
and the fact that he did not make the allegations earlier despite
having had the opportunity. For a long period he had gone to ground,
leaving the United Kingdom and making himself untraceable.
However,
even if the allegations did trigger or revive a procedural
obligation, the investigations into his allegations did comply with
the requirements of Article 2, which in the circumstances involving a
serious lapse of time, were less stringent or extensive. What steps
may reasonably be taken are also affected by the time factor. The
investigations were independent, as the RUC personnel involved in the
initial investigations had long since left the security forces or
died, PSNI had undergone extensive reform and was to be regarded as
independent of the RUC, and in any event the HET which was now
carrying out the investigation was independent of both the RUC and
PSNI, while the Police Ombudsman for Northern Ireland was also
independent and in a position to investigate and monitor the HET
investigation. The investigations were reasonably prompt having
regard to the circumstances and the other pressures on policing
resources in Northern Ireland: the police were hampered by the
failure of Weir to give a statement to them and their attempts to
trace him had proved fruitless. Further, the investigations had been
as effective as could reasonably be expected in the circumstances,
the applicant not identifying any concrete line of inquiry or step
which should have been taken but was not. Efforts had been
made to meet with Weir. However, when he did agree to meet with the
HET in Dublin, he refused to make a written statement or to give
evidence in court. There had also been involvement of the family and
public scrutiny to the requisite degree, given that there was no
obligation to provide relatives with access to the file of an ongoing
criminal investigation and that police officers had met with and
discussed the case with the family on a number of occasions. They
referred to the Court's case-law that there was no absolute right to
obtain a prosecution and that no breach arose in such cases where
there were no culpable failures in seeking to hold perpetrators of
criminal offences accountable (relying on Szula v. the United
Kingdom, no. 18727/06, (dec.) 4 January 2007). In this case,
where the review process was close to conclusion, there were no more
realistic additional evidential opportunities to follow up and they
had been unable to compile a sufficient evidential case for further
prosecutions.
B. The Court's assessment
1. Applicable principles
The
obligation to carry out an effective investigation into unlawful or
suspicious deaths is well-established in the Court's case-law (for a
full statement of principles by the Grand Chamber, see, most
recently, Nachova and Others v. Bulgaria [GC], nos. 43577/98
and 43579/98, §§ 110-113, ECHR 2005 VII). When
considering the requirements flowing from the obligation, it must be
remembered that the essential purpose of such investigation is to
secure the effective implementation of the domestic laws which
protect the right to life and, in those cases involving State agents
or bodies, to ensure their accountability for deaths occurring under
their responsibility. Furthermore, even where there may be obstacles
or difficulties which prevent progress in an investigation in a
particular situation, a prompt response by the authorities is vital
in maintaining public confidence in their adherence to the rule of
law and in preventing any appearance of collusion in or tolerance of
unlawful acts (see McKerr v. the United Kingdom,
no. 28883/95, §§ 111 and 114, ECHR 2001 III).
The
obligation comes into play, primarily, in the aftermath of a violent
or suspicious death and in the normal course of events, a criminal
trial, with an adversarial procedure before an independent and
impartial judge, must be regarded as furnishing the strongest
safeguards of an effective procedure for the finding of facts and the
attribution of criminal responsibility. There is no absolute right
however to obtain a prosecution or conviction (e.g. Szula v. the
United Kingdom, cited above) and the fact that an investigation
ends without concrete, or with only limited, results is not
indicative of any failings as such. The obligation is of means only
(Avşar v. Turkey, no. 25657/94, § 394,
ECHR 2001 VII (extracts)) However, as in this case, it may be
that some time later, information purportedly casting new light on
the circumstances of the death comes into the public domain. The
issue then arises as to whether, and in what form, the procedural
obligation to investigate is revived.
The
Court must reject the Government's argument that no new obligation
arises and that a strict six month time-limit must be applied,
rendering applications more than six months after the end of the
original investigation out of time within the meaning of Article 35 §
1 of the Convention. It has already had cause to examine cases in
which new evidence came to light after the conclusion of the original
proceedings concerning a death. In McKerr v. the United Kingdom
(cited above) where there had been a criminal trial of three officers
charged with murder of unarmed IRA suspects and subsequently serious
concerns arose that this incident, together with two others at the
time, involved a practice of excessive use of force by the RUC and
the deliberate concealment of evidence, the Court held:
"... there may be circumstances where issues arise
that have not, or cannot, be addressed in a criminal trial and that
Article 2 may require wider examination. ...... the aims of
reassuring the public and the members of the family as to the
lawfulness of the killings had not been met adequately by the
criminal trial. In this case therefore, the Court finds that Article
2 required a procedure whereby these elements could be examined and
doubts confirmed, or laid to rest. It considers below whether the
authorities adequately addressed these concerns."
Similarly,
where in Hackett v. the United Kingdom (no. 34698/04, (dec.)
10 May 2005) a book was published in which the author alleged that he
had been wrongly convicted of the murder of the applicant's husband
years earlier and purported to name the actual perpetrator, the Court
noted that events or circumstances may arise which cast doubt on the
effectiveness of the original investigation and trial or which raise
new or wider issues and an obligation may therefore arise for further
investigations to be pursued. It considered that the nature and
extent of any subsequent investigation required by the procedural
obligation would inevitably depend on the circumstances of each
particular case and might well differ from that to be expected
immediately after a suspicious or violent death has occurred.
The
Court would also comment that there is little ground to be overly
prescriptive as regards the possibility of an obligation to
investigate unlawful killings arising many years after the events
since the public interest in obtaining the prosecution and conviction
of perpetrators is firmly recognised, particularly in the context of
war crimes and crimes against humanity.
The
Court would, however, draw attention to the following considerations.
It cannot be the case that any assertion or allegation can trigger a
fresh investigative obligation under Article 2 of the Convention.
Nonetheless, given the fundamental importance of this provision, the
State authorities must be sensitive to any information or material
which has the potential either to undermine the conclusions of an
earlier investigation or to allow an earlier inconclusive
investigation to be pursued further. Both parties have suggested
possible tests. The Court has doubts as to whether it is possible to
formulate any detailed test which could usefully apply to the myriad
of widely-differing situations that might arise. It is also salutary
to remember that the Convention provides for minimum standards, not
for the best possible practice, it being open to the Contracting
Parties to provide further protection or guarantees. For example,
contrary to the applicant's assertion, if Article 2 does not impose
the obligation to pursue an investigation into an incident, the fact
that the State chooses to pursue some form of inquiry does not
thereby have the effect of imposing Article 2 standards on the
proceedings. Lastly, bearing in mind the difficulties involved in
policing modern societies and the choices which must be made in terms
of priorities and resources, positive obligations must be interpreted
in a way which does not impose an impossible or disproportionate
burden on the authorities (Osman v. the United Kingdom,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII, § 116).
With
those considerations in mind, the Court takes the view that where
there is a plausible, or credible, allegation, piece of evidence or
item of information relevant to the identification, and eventual
prosecution or punishment of the perpetrator of an unlawful killing,
the authorities are under an obligation to take further investigative
measures. The steps that it will be reasonable to take will vary
considerably with the facts of the situation. The lapse of time will,
inevitably, be an obstacle as regards, for example, the location of
witnesses and the ability of witnesses to recall events reliably.
Such an investigation may in some cases, reasonably, be restricted to
verifying the credibility of the source, or of the purported new
evidence. The Court would further underline that, in light of the
primary purpose of any renewed investigative efforts (see paragraph
65 above), the authorities are entitled to take into account the
prospects of success of any prosecution. The importance of the right
under Article 2 does not justify the lodging, willy-nilly, of
proceedings. As it has had occasion to hold previously, the police
must discharge their duties in a manner which is compatible with the
rights and freedoms of individuals and they cannot be criticised for
attaching weight to the presumption of innocence or failing to use
powers of arrest, search and seizure having regard to their
reasonably held view that they lacked at relevant times the required
standard of suspicion to use those powers or that any action taken
would not in fact have produced concrete results. (Osman,
cited above, § 121).
The
extent to which the requirements of effectiveness, independence,
promptness and expedition, accessibility to the family and sufficient
public scrutiny apply will again depend on the particular
circumstances of the case, and may well be influenced by the passage
of time as stated above. Where the assertion or new evidence tends to
indicate police or security force collusion in an unlawful death, the
criterion of independence will, generally, remain unchanged (see, for
the importance of this criterion from the very earliest stage of the
procedure, Ramsahai and Others v. the Netherlands [GC],
no. 52391/99, §§. 325, 333-341, ECHR 2007-...). Promptness
will be likely not to come into play in the same way, since, for
example, there may be no urgency as regards the securing of a scene
of the crime from contamination or in obtaining witness statements
while recollections are sharp. Reasonable expedition will remain a
requirement, but what is reasonable is likely to be coloured by the
investigative prospects and difficulties which exist at such a late
stage.
2. Application in the present case
The
Court recalls that in the present application the investigation into
the shooting of the applicant's husband came to an inconclusive
conclusion in 1981, when the decision was taken not to pursue charges
against McClure and Shields, who had apparently driven the
perpetrators on the night of the incident, for failure to disclose
information about the killing. It was more than seventeen years later
that allegations by John Weir were made public concerning collusion
between security forces and loyalist terrorists and naming four
loyalists as having been responsible for the attack. These
allegations were published, or made known from March 1999 and
received wide publicity when included in a television programme in
June 1999. An investigative response appears to have been commenced
by the RUC at around that time. Interviews with seven individuals
central to Weir's allegations and amongst those who could be traced
or were still alive, were conducted in 2001, without obtaining any
useful new or incriminating evidence. Information was received from
counterparts in the Irish police force and also provided to the
inquiry in Dublin which was investigating a number of incidents at
this time (paragraphs 42-45 above). It would appear that the RUC
investigation was acknowledged as failing to progress due to the need
to interview Weir directly. While the applicant alleged, in answer to
the Government's assertion that Weir had proved inaccessible to the
United Kingdom authorities, that the Dublin police and the Centre had
no difficulty in talking to him, the Court would note that Weir
refrained from coming within the jurisdiction, where he might well
have risked further criminal charges being lodged against him or
retaliatory steps from those whom he had been naming in the press. It
sees no reason to disbelieve the Government's statement that they
took steps to locate Weir, including approaching his last known
address and making inquiries from the Irish police and the Barron
inquiry staff.
The
Court notes that in 2004 the case was transferred to the SCRT which
carried out a further assessment and then referred it to the HET
where evidence was reviewed under the supervision of a Metropolitan
Police senior officer. This team did succeed in interviewing Weir who
refused either to make a statement or to agree to give evidence in a
United Kingdom court. The HET has now apparently reached the
conclusion that there is insufficient evidence to proceed further
although it does not appear that any formal decision has yet been
issued to that effect.
Before
assessing these investigative measures against the standards of
Article 2 of the Convention, the Court notes, first, that the
allegations made by Weir were serious, involving security force
collusion in systematic targetting of innocent civilians and that
they were, prima facie, plausible, deriving from a source who
had been involved in such incidents and giving concrete details. In
the circumstances an obligation arose on the authorities to verify
the reliability of the information and whether a full investigation,
with a view to bringing charges against any suspect, could usefully
be launched. Investigative measures have been carried out in this
case. Their compliance with Article 2 is examined below.
a. Independence
The
Court would observe that the initial inquiries were carried out by
the RUC, which was itself implicated in Weir's allegations as their
own officers had allegedly been heavily involved. They cannot be
regarded as disclosing the requisite independence (see Ramsahai,
cited above, §§ 333-341). It was the RUC which
carried out the interviews with those named by Weir and which was
entrusted with the initial assessment of the credibility of his
allegations. This must be regarded as tainting the early stage of the
enquiries. The Court recalls that the PSNI took over from the RUC in
November 2001. It is satisfied that the PSNI was institutionally
distinct from its predecessor even if, necessarily, it inherited
officers and resources. It observes that the applicant has not
expressed any doubts about the independence of the teams which took
over from 2004 (the SCRT and HET). However this does not in the
circumstances detract from the fact that for a considerable period
the case lay under the responsibility and control of the RUC. In this
respect, therefore, there has been a failure to comply with the
requirements of Article 2 of the Convention.
b. Accessibility to the family and public scrutiny
The
Court notes that this aspect of the procedural obligation does not
require applicants to have access to police files, or copies of all
documents during an ongoing inquiry, or for them to be consulted or
informed about every step (McKerr, cited above, § 121;
Green v. the United Kingdom, no. 28079/04, (dec.) 19 May 2005;
Hackett v. the United Kingdom, cited above). It would appear
that the police did make efforts to meet with members of the family
from about 2000 onwards (see paragraphs 27, 30, 33 and 36) and there
was also correspondence between the police and the applicant's
representatives. If only limited information has been passed on, it
is not apparent that this flowed from any obstructiveness or
obfuscation rather than a lack of any concrete results. The Court is
not persuaded in the present case that the applicant has been
excluded from the investigative process to such a degree as would
infringe the minimum standard under Article 2.
c. Promptness and reasonable expedition
The
Court considers that the RUC took up inquiries without undue delay.
If the matter has dragged on from 1999 to 2007 this has largely been
due to the lack of any strong leads and difficulties in interviewing
Weir, who remained outside the jurisdiction. It is not apparent that
there has been any wilful foot-dragging or prevarication. The Court
also takes into account that a considerable number of other cases
were being simultaneously reviewed over this period. While there
might nonetheless be a question mark as to the slowness of progress
in the early stages when the RUC were in charge, the Court notes its
finding of lack of independence above and finds no separate issue
arises in the circumstances. No breach of these requirements has been
made out.
d. Effectiveness
As
regards the adequacy of the steps taken, the Court is not persuaded
by the applicant that there have been any significant oversights or
omissions. The key traceable witnesses have been interviewed, and the
available evidence collected and reviewed. The Court is not persuaded
that the apparent errors or shortcomings of the RUC identified by the
applicant (see paragraph 55) can be regarded as rendering the
investigative process inadequate when viewed as a whole.
Insofar
as the applicant claims that a further prosecution could be brought
against McClure and Shields, the Court recalls that the earlier
prosecution was dropped and that attempts to challenge the lawfulness
of this step failed, inter alia, due to the delay by the
applicant in raising the matter and the potential unfairness to the
two involved individuals who had not been parties to the case. It
would note that these two individuals were relatively minor
participants in events and considers that the authorities could
reasonably take the view that attempting to revive the previous
charges, or upgrade them to aiding and abetting, would at this stage
be either doomed to failure or be unduly oppressive and thus not
assist materially in bringing to account those principally
responsible for the death of the applicant's husband.
Nor
is it apparent that any prosecution against any other person would
have any prospect of success given Weir's refusal to make a statement
or to give evidence himself. In the circumstances, the Court cannot
impugn the authorities for any culpable disregard, discernable bad
faith or lack of will (mutatis mutandis, Szula v. the
United Kingdom, cited above).
e. Conclusion
The
Court finds that the investigative response to Weir's allegations
lacked the requisite independence in its early stages. There has
been, in that respect alone, a violation of Article 2 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant complained under this provision about the lack of any
effective remedy, submitting that the House of Lords decision of 11
March 2004 in the case of McKerr v. the Secretary of State for
Northern Ireland removed any domestic remedy for her allegation
that the current investigation breached Article 2 of the Convention.
In
view of its findings above, the Court considers that is not necessary
to examine separately the complaint under this Article.
III. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
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
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 husband's death.
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.
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 death of the applicant's husband. 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
The
applicant claimed, for legal fees and expenses, 29,239.71 pounds
sterling (GBP) for her solicitors' bill and GBP 29,375 for counsel's
fees, both sums being inclusive of value-added tax (VAT). The latter
was a global figure which covered work in this case and the four
associated cases.
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; 200 hours for counsel was remarked upon. They proposed
no more than GBP 20,000 for solicitors' costs and GBP 15,000 for
counsel in total for all four cases together.
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).
Having
regard to the complexity of the case and the procedure adopted, the
Court awards the applicant EUR 29,000 for solicitors' costs and EUR
22,000 for counsel's fees, which figures are inclusive of VAT.
C. Default interest
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
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;
Holds that it is not necessary to examine
separately the applicant's complaint under Article 13 of the
Convention;
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;
in respect of
non-pecuniary damage, EUR 5,000 (five thousand euros);
in respect of costs
and expenses, EUR 51,000 (fifty one 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;
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