Interim Resolution CM/ResDH(2009)44

Action of the Security Forces in Northern Ireland
(Case of McKerr against the United Kingdom and five similar cases)

Measures taken or envisaged to ensure compliance with the judgments of the European Court of Human Rights in the cases against the United Kingdom listed in Appendix II

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter “the Convention”);

Having regard to the judgments of the European Court of Human Rights (hereinafter referred to as “the Court”) in the cases against the United Kingdom listed in Appendix II, in all of which the Court unanimously held that there had been a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of the applicants’ next-of-kin and in one of which (McShane) the Court also held, unanimously, that there had been a failure by the State to comply with its obligations under Article 34 of the Convention;

Recalling the first Interim Resolution on these cases (ResDH(2005)20), adopted on 23 February 2005 at the 914th meeting of the Ministers’ Deputies, which took stock of the general and individual measures taken or envisaged by the United Kingdom authorities;

Noting that, on the basis of the developments which had taken place and the clarifications given, the Committee decided, at the 948th meeting (November 2005), to close the examination of the general measures adopted to remedy the following problems revealed by the judgments:

-	the inquest procedure did not allow any verdict or findings which might play an effective role in securing a prosecution in respect of any criminal offence;
-	the scope of the examination for the inquest was too restricted;
-	the persons who shot the deceased could not be required to attend the inquest as witnesses;
-	the non-disclosure of witness statements prior to the appearance of a witness at the inquest prejudiced the ability of families to prepare for and to participate in the inquest and contributed to long adjournments in the proceedings;
-	the absence of legal aid for the representation of the victims’ families;

Recalling that, having evaluated anew the measures taken by the United Kingdom authorities, the Committee adopted Interim Resolution CM/ResDH(2007)73 at the 997th meeting (June 2007) and decided also to close the examination of the general measures adopted to remedy the following problems:

-	the lack of public scrutiny of and information to victims’ families on reasons for decisions of the Director of Public Prosecutions not to bring any prosecution;
-	the fact that the public interest immunity certificate in McKerr had the effect of preventing the inquest examining matters relevant to the outstanding issues in the case;
-	the application of the package of measures to the armed forces;

Recalling further that, having evaluated the measures taken by the United Kingdom authorities, the Committee, at the 1020th meeting (March 2008), decided to close the examination of the general measures adopted to remedy the fact that the inquest proceedings did not commence promptly and were not pursued with reasonable expedition;

Noting that, in Interim Resolution CM/ResDH(2007)73, the Committee, in particular:

“INVITE[D] the Government of the respondent State to provide the Committee with the Police Ombudsman’s report of the five-yearly review of her powers and with the response of the authorities to its content”;

“INVITE[D] the authorities to continue to keep the Committee informed as regards the progress made in the investigation of historical cases, and in particular to provide information concerning concrete results obtained in this context both by the HET [Historical Enquiries Team] and by the Police Ombudsman”;

General measures

Having assessed the additional information provided by the government of the respondent state regarding the general measures taken or envisaged since the adoption of the second Interim Resolution (see the presentation of the measures taken in the following information documents: CM/Inf/DH(2008)2, declassified at the 1020th meeting (March 2008); CM/Inf/DH(2008)2 revised, declassified at the 1043rd meeting (December 2008) and Appendix I);

-	The Police Ombudsman’s report of the five-yearly review of his powers and the response of the authorities to its content

Noting the publication of the Police Ombudsman’s Five Year Review report containing a number of recommendations while recognising that this is not a general review of the Ombudsman’s powers but a review of the workings of Part VII of the Police (Northern Ireland) Act 1998, by which the Office of the Police Ombudsman for Northern Ireland was established and which concerns police complaints and disciplinary proceedings;

Noting that the Government of the United Kingdom commenced a twelve-week consultation exercise on the Police Ombudsman’s Five Year Review on 11 December 2008 which ended on 5 March 2009;

INVITES  the government of the respondent state to provide information to the Committee on their reaction to the Five Year Review report, in particular to Recommendation 13, which gives power to the Ombudsman to compel retired police officers to appear as witnesses;

-	Concrete results obtained in the investigation of historical cases by the Historical Enquiries Team (HET) and the Police Ombudsman of Northern Ireland

Recalling the establishment of the Historical Enquiries Team (HET) in late 2005 as the successor to the Serious Crime Review Team (SCRT), which has the task of providing a thorough and independent reappraisal of unresolved cases, with the aim of identifying and exploring any evidential opportunities that exist, and, if evidential opportunities are identified, to proceed with the investigation of the crime;

Noting that the HET process is taking longer than originally anticipated as a result of its high caseload and that 63% of the cases before it still remain open;

Acknowledging that, despite these setbacks, the HET can be viewed as a useful model for bringing a “measure of resolution” to those affected in long-lasting conflicts;

Taking note of the structural arrangements and organisation of the HET which is staffed by retired police officers from Scotland, Wales and England; serving police officers seconded from police forces across the United Kingdom and a number of retired Royal Ulster Constabulary;

Noting that the HET funding cannot be used for other policing work and is allocated to each of the organisations involved in the HET project;

Welcoming that the HET’s well-structured organisational scheme allows its different teams to concentrate on different aspects of a case depending on its complexity and the engagement of the family concerned;

Noting that the HET meets with the families, informs them of its findings and provides a copy of the Summary Report and that the families can seek further clarifications of any outstanding issues after receiving the Summary Report;

Welcoming the good working relations established between the HET and the Police Ombudsman of Northern Ireland and noting with satisfaction that these institutions have adopted a Memorandum of Understanding in relation to the investigation of historical cases;

Noting in this context that the HET has transferred a total of 87 cases to the Police Ombudsman for its examination and that the Police Ombudsman may decide to publish the results of the investigations into these cases when his investigations have concluded, if he considers this appropriate;

DECIDES  to close its examination of this issue as the HET has the structure and capacities to allow it to finalise its work;

- Failure by the respondent state to comply with its obligation under Article 34 of the Convention

Recalling that the Court found in the McShane case a failure by the respondent state to comply with its obligation under Article 34 of the Convention in that the police had, albeit unsuccessfully, brought disciplinary proceedings against the solicitor who represented the applicant in domestic proceedings for having disclosed certain witness statements to the applicant’s legal representatives before the Court;

Noting that the Government of the United Kingdom is fully committed to ensuring that its obligation under Article 34 is respected;

Noting also that the Government of the United Kingdom has drawn the terms of the McShane judgment to the attention of all responsible for litigation in Northern Ireland on behalf of the Security Forces;

DECIDES  to close its examination of this issue in the light of the assurances given by the United Kingdom authorities to prevent interference with the right of individual petition;

Individual measures

Recalling the respondent state’s obligation under the Convention to conduct an investigation that is effective “in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible”;

Noting that this obligation “is not an obligation of result, but of means”;

Recalling further that the Committee has consistently noted that there is a continuing obligation to conduct effective investigations inasmuch as procedural violations of Article 2 were found by the Court;

Noting in this respect that it is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation;

Recalling that, in Interim Resolution CM/ResDH(2007)73, the Committee:

“URGE[D] the authorities of the respondent state to take, without further delay, all necessary investigative steps in these cases in order to achieve concrete and visible progress;

“ INVITE[D] the government of the respondent state to keep the Committee regularly informed thereof”;

In the cases of Jordan, Kelly and Others, McKerr and Shanaghan

Noting with concern that progress with regard to the individual measures in these cases has been limited, in particular in the case of Jordan where the inquest will not start before June 2009 although it was announced previously that it would begin in April 2008;

STRONGLY URGES  the authorities of the respondent state to take all necessary measures with a view to bringing to an end, without further delay, the ongoing investigations while bearing in mind the findings of the Court in these cases;

In the case of McShane

Noting that a verdict was given in the inquest proceedings concerning the death of Mr McShane on 4 July 2008 establishing the circumstances in which his death took place;

Noting further that a number of key police and military witnesses attended and gave evidence during the inquest proceedings;

Taking note of the fact that, although the Coroner made every effort to secure his attendance, the driver of the vehicle which hit Mr McShane did not attend the inquest as he resides outside the United Kingdom;

Noting with satisfaction that, following the coming into force of the Justice (Northern Ireland) Act 2002 (section 35), the Coroner is now under a duty to write to the Director of Public Prosecutions for Northern Ireland (DPP(NI)), if it appears to the Coroner that a criminal offence may have been committed in the light of the findings of the inquest;
Noting in this context that the Coroner wrote to the DPP(NI) on 30 January 2009 under section 35 of the Justice (Northern Ireland) Act and the DPP(NI) responded on 5 February 2009 to say that he would give consideration to the evidence provided by the Coroner and on 23 February 2009 requested further information from the Coroner;
Noting that the applicant has been informed that the DPP(NI) is considering the matter;
Noting further that it is open to the applicant to bring a judicial review should the DPP(NI) decide that no further prosecution should be brought;
DECIDES  to close the examination of this case with respect to individual measures;

In the case of Finucane

Noting that, within the context of the execution of the Finucane judgment, the United Kingdom authorities have provided information to the Committee on the Stevens III investigation and on the possibility of holding a statutory inquiry into the death of the applicant’s husband;

Taking note of the fact that, since the judgment of the Court in this case became final, no new information has been made public with regard to the contents of the Stevens III investigation, which, as acknowledged by the Court, was squarely concerned with the Finucane murder;

Recalling the Court’s well-established case-law that “disclosure or publication of police reports and investigative materials [...] cannot be regarded as an automatic requirement under Article 2” and that “the requisite access of the public or the victim’s relatives may be provided for in other stages of the available procedures”;

Noting in this context that the evidence and information gathered in the course of the Stevens III investigation has been the subject of an examination by the Public Prosecution Service of Northern Ireland who concluded in June 2007 that no further prosecutions should be brought against any individual because the test for prosecution as set out in the Code of Prosecutors was not met;

Noting with satisfaction that the DPP(NI) issued a public statement giving reasons for the abovementioned decision in compliance with the general measures taken by the United Kingdom in this respect;

Noting that no application for a judicial review was made on the basis of a failure to give detailed reasons for the decision not to prosecute although Northern Ireland law now allows for such review following the measures taken by the United Kingdom authorities;

Noting with satisfaction that, as to the possibility of holding a statutory inquiry, the United Kingdom authorities are currently in correspondence with the Finucane family on the basis on which any inquiry would be established;

Strongly encouraging the United Kingdom authorities to continue discussions with the applicant on the terms of a possible statutory inquiry;

 	DECIDES to close the examination of this case with respect to individual measures;

Conclusion

DECIDES  to pursue the supervision of the execution of the present judgments until the Committee has satisfied itself that the outstanding general measure as well as all necessary individual measures in the cases of Jordan, Kelly and Others, McKerr and Shanaghan have been taken;

DECIDES  to resume consideration of the abovementioned four cases, as regards outstanding individual measures at each of its meetings dedicated to the supervision of the execution of the judgments of the Court and of all these cases, as regards general measures at intervals not longer than six months.

Appendix I to Interim Resolution CM/ResDH(2009)44

Information provided by the Government of the United Kingdom to the Committee of Ministers on individual and general measures taken since the adoption of Interim Resolution CM/ResDH(2007)73 at the 997th meeting of the Ministers’ Deputies on 6 June 2007 can be found in the following information documents: CM/Inf/DH(2008)2, declassified at the 1020th meeting (March 2008) and CM/Inf/DH(2008)2 revised, declassified at the 1043rd meeting (December 2008).

Information provided since the 1043rd meeting or not otherwise contained in the above documents is summarised below:

General measure A - The Police Ombudsman’s report of the five-yearly review of his powers and the response of the authorities to its content

The Government of the United Kingdom commenced a twelve-week consultation exercise on the Police Ombudsman’s Five Year Review on 11 December 2008. This consultation exercise includes the current Police Ombudsman and ended on 5 March 2009.

Failure by the respondent state to comply with its obligation under Article 34 of the Convention
As to the violation of Article 34, the government’s firm policy is to ensure that its obligations under this Article are respected. In particular the Chief Constable has confirmed that he would never wish to do anything which would hinder any applicant from exercising his or her right of individual petition.
Furthermore, the government has drawn the terms of the McShane judgment to the attention of all responsible for litigation in Northern Ireland on behalf of the Security Forces. In one case, where an undertaking was sought not to use documents disclosed by the Royal Ulster Constabulary, the undertaking was modified to ensure that disclosure to the European Court of Human Rights would not constitute a breach of that undertaking, and thus the solicitor from whom the undertaking was sought would not commit a disciplinary offence if the documents were to be disclosed to that Court.
Individual measures

 In the case of Jordan, the Coroner gave a provisional ruling on 13 January 2009 on applications by the Police Service of Northern Ireland (PSNI) for screening/anonymity in the inquest proceedings for some witnesses; the parties have 7 days from that date to submit written representations. Following a further preliminary hearing on 22 January, the Coroner indicated that the inquest would not start before June 2009. On 24 February 2009 the applicant brought judicial review challenges of the Coroner’s decision to grant anonymity and screening for all police witnesses, and his stance on his ability to compel witnesses residing outside the UK. These challenges are likely to delay inquest proceedings until at least June 2009.

 As a result of the work undertaken by HET in the case of Kelly and Others, further enquiries will be carried out before the Review Summary Report is delivered to the families. The HET will continue to liaise with the families who have engaged with the process and update them accordingly.

 Following the preliminary hearing on 29 October 2008 in the case of McKerr, the matter of the disclosure of the Stalker/Sampson papers remains under consideration.

 In the case of Shanaghan, the HET have completed all enquiries and are now preparing the final Review Summary Report. They continue to liaise with the family through an NGO (the Committee on the Administration of Justice (CAJ)). The investigation by the Police Ombudsman is almost complete and they are moving to the report-writing phase, which it is estimated will take approximately two months.

 In the case of McShane, a verdict was given on 4 July 2008 in the inquest proceedings which commenced on 27 May 2008. The inquest established the facts concerning the incident in which Mr McShane died. A number of key police and military witnesses attended and gave evidence during the inquest proceedings. The driver of vehicle concerned in the collision resides in the European Union but outside the United Kingdom and therefore outside the jurisdiction of both the Coroner’s court and the High Court. Although the Coroner made every effort to secure his attendance including having a letter delivered to him by the police in his country of residence, the driver did not attend the inquest. There are no legally enforceable measures available to the Coroner to secure the driver’s attendance.

As to the question whether it was possible for the jury to give any conclusions as to whether Mr McShane was killed unlawfully, it is noted that a verdict of unlawful killing is not open to a jury in Northern Ireland (Rule 16 of the Coroners (Practice and Procedure) Rules Northern Ireland) 1963. However, as confirmed by the House of Lords’ judgment in Jordan v Lord Chancellor [2007] UKHL 14, there is nothing in the Coroners Act 1959 or in the Coroners (Practice and Procedure) (Northern Ireland) Rules which prevents a jury finding facts directly relevant to the cause of death which may point very strongly towards a conclusion that criminal liability exists or does not exist. In the McShane case the jurors were invited to consider what role, if any, those concerned had played in Mr McShane’s death. It was open to the jury to reach conclusions which might suggest that an offence had been committed.

If it appears to the coroner, following the verdict, that a criminal offence may have been committed he is under a duty to write to the Director of Public Prosecutions for Northern Ireland (DPP(NI)) under section 35 of the Justice (Northern Ireland) Act 2002. The Coroner wrote to the DPP(NI) on 30 January 2009. The DPP(NI) responded on 5 February 2009 to say that he would give consideration to the evidence provided by the Coroner and on 23 February 2009 requested further information from the Coroner. “No prosecution” decisions by the DPP(NI) are open to judicial review.

Appendix II to Interim Resolution CM/ResDH(2009)44

Cases concerning the action of security forces in Northern Ireland

Application
number	Case name	Date of judgment	Date of final judgment 	
24746/94	Jordan	04/05/2001	04/08/2001	
28883/95	McKerr	04/05/2001	04/08/2001	
30054/96	Kelly and others	04/05/2001	04/08/2001	
37715/97	Shanaghan	04/05/2001	04/08/2001	
43290/98	McShane	28/05/2002	28/08/2002	
29178/95	Finucane	01/07/2003	01/10/2003