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URL: http://www.bailii.org/eu/cases/ECHR/2011/1341.html
Cite as: [2011] ECHR 1341

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5 September 2011

FOURTH SECTION

Application no. 23276/09
by Susan ALEXANDER
against the United Kingdom
lodged on 14 April 2009

STATEMENT OF FACTS

THE FACTS

The applicant, Susan Alexander, is a British national who was born in 1960 and lives in Middlesex, the United Kingdom. She is represented before the Court by Hickman Rose, a firm of solicitors practising in London.

A. The circumstances of the case

The case concerns the shooting by police of the applicant’s son, Azelle Rodney, in 2005. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background facts

On 30 April 2005 a number of police officers, acting on intelligence, began a search for individuals as part of an operation run by the Metropolitan Police’s Specialist Crime Directorate and SO19 (Special Firearms Officers, now called CO19). The operation included following a group of men in a car. Mr Rodney was seated in the back of the car.

At some point it was decided that the vehicle should be stopped and the police officers carried out a “hard stop”. During this procedure, Mr Rodney was shot by a police officer (“E7”) and died at the scene. The post-mortem examination revealed a number of gunshot wounds to the head and neck. A number of weapons were found in the car.

2. The Independent Police Complaints Commission (“IPCC”) and the Crown Prosecution Service (“CPS”)

The IPCC conducted, pursuant to Section 24(2) of Schedule 3 to the Police Reform Act 2002, an investigation into whether a criminal offence had been committed. In December 2005 the IPCC report was referred to the CPS. Mr Rodney’s family and the police officers in question were informed. In July 2006 the CPS advised the IPCC that there was insufficient evidence to bring criminal charges. From this point, the applicant sought pre-Inquest disclosure from the IPCC. In December 2006 the applicant was supplied with a redacted version of the IPCC report.

In January 2007 the applicant, the Home Secretary and the Treasury Solicitors corresponded about the redaction of the IPCC report. On 22 February 2007 the IPCC supplied the applicant with a less redacted version, the report including some “gists” (summaries) instead of some of the earlier redactions. In July 2007 the IPCC disclosed some redacted investigation material to the applicant and to the Coroner.

3. Inquest

On 2 August 2007 the Coroner gave a ruling following a pre-Inquest hearing on disclosure of documents. The Coroner noted that all parties agreed that he was obliged to carry out an Inquest, that Article 2 imposed a duty to investigate a death caused by an agent of the State and that the Inquest was the forum in which the State would, in the first instance, seek to comply with its procedural obligations under Article 2. He referred to the criteria which an investigation must satisfy set out in Hugh Jordan v. the United Kingdom (no. 24746/94, ECHR 2001 III), notably that the investigation had to be effective so that it had to be conducted in a manner that did not undermine its ability to establish the relevant facts and, further, that there had to be “a sufficient element of public scrutiny”. The Coroner considered that those latter two obligations included the requirement to disclose core documents. He accepted that the IPCC could not lawfully disclose the redacted or gisted material (although a small part could be the subject of a Public Interest Immunity application and that part would be material which he could review). He also accepted that as a matter of law “neither the jury as the tribunal of fact, nor I as Coroner, could hear this evidence at or before any Inquest”. Moreover, the material was relevant. He stated that there was:

“an irresistible inference that the redacted material is relevant for the purpose of the Inquest and that it would be insufficient simply for the jury to rely on the replacement agreed text for these redacted portions”.

Counsel for the IPCC and for the Metropolitan Police Service (“MPS”), who knew its content, were also of the view that the redacted and gisted material was relevant for the Inquest.

The Coroner also rejected the proposal of Counsel for the MPS to appoint an Assistant Deputy Coroner who would see and determine the relevance of the undisclosed material. The Coroner was already able to form a conclusion on its relevance without such an appointment. In any event, the State’s obligations under Article 2 would not be met by such an appointment as the jury would still not hear all relevant evidence and the members of the family would not be able to be involved to the extent necessary to safeguard their legitimate interests. Despite these conclusions, the Coroner was obliged to conduct an Inquest with a jury (section 8 of the Coroner’s Act 1988). He would take no further steps towards holding an Inquest in order to allow Counsel for the parties to consider the effect of his rulings.

4. Proposed legislative changes

By letter of 14 September 2007 the applicant sent a “letter before claim” to the Secretary of State for Justice requiring his immediate intervention to enable a Convention compliant Inquest to take place and, notably, to legislate to allow the IPCC and/or the Commissioner of the Police of the Metropolis to disclose to interested persons and to the Coroner any evidence that had been secured under an intercept warrant.

By letter dated 30 November 2007 the Treasury Solicitors agreed that legislation was required to deal with the use of sensitive material in investigations into deaths required by the Convention. While they were acutely aware of the time which had elapsed, it was vital for any legislative changes to be formulated clearly. The applicant would be updated as soon as possible. Since legislation was required and since proceedings would not therefore assist the applicant, the Treasury Solicitors requested her to postpone any court action pending the proposed legislation.

In early 2008 the Counter-Terrorism Bill 2008 (“CTB”) was published. Part 6 of the CTB allowed the Secretary of State to certify that an Inquest would involve the consideration of material that should not be made public for certain reasons so that the Inquest could be held without a jury and be run by a specially appointed Coroner assisted by a Special Counsel. While the Coroner and Counsel would see disclosed sensitive material, the next-of-kin would not. The Regulation of Investigatory Powers Act 2000 (“the RIPA”) would be amended to allow intercept evidence to be disclosed in exceptional circumstances.

On 9 June 2008 the applicant requested a meeting with the Treasury Solicitors on Part 6 of the CTB. A meeting of various parties with the Treasury Solicitors took place. Since that meeting did not discuss her son’s case in any detail, by letter dated 11 June 2008 the applicant requested a further meeting on his case and, notably, to underline why Part 6 of the CTB would not comply with Article 2 of the Convention. On 1 July 2008 the Minister of State of the Home Office wrote to the applicant to the effect that he considered Part 6 of the CTB to be Convention compliant.

On 14 October 2008, during its passage before the House of Lords, Part 6 of the CTB was withdrawn (apart from a Clause which proposed to amend the Inquiries Act 2005 (“the 2005 Act”) and section 18 of the RIPA, see paragraphs 15 and 36 below). The applicant wrote on the same day to the Treasury Solicitors seeking urgent legislation to ensure that an Article 2 compliant Inquest could proceed and threatening litigation.

On 28 October 2008 the Treasury Solicitors responded to the applicant confirming the intention to legislate and that the Secretaries of State for the Home Department and for Justice considered that Part 6 of the CTB would have permitted Article 2 compliant Inquests to proceed.

On 26 November 2008 the Counter-Terrorism Act 2008 (“the CTA”) received royal assent and section 74 (see paragraph 36 below) entered into force on 15 February 2009.

On 14 January 2009 the applicant received an e-mail from the Coroner Reform Policy Team announcing that the Coroners and Justice Bill 2009 would be published that day and apologising for failing to provide the applicant with prior consultation. The Bill was published with provisions (sections 11-13) similar to those withdrawn from the CTB.

On 15 May 2009 the “secret Inquest” provisions were withdrawn from the Coroners and Justice Bill 2009. On the same day the Secretary of State for Justice stated in Parliament that, where it was not possible to proceed with Inquests under the current arrangements, the Government would consider establishing an Inquiry under the 2005 Act to ascertain the circumstances in which a deceased came by his or her death.

On 1 June 2009 the applicant wrote to the Treasury Solicitors requesting information about the application of the 2005 Act to her case within 7 days. Obtaining a response but not confirmation of the holding of an Inquiry, she wrote on 2 December 2009 and 16 March 2010 requesting the early establishment of an Inquiry and threatening litigation.

In November/December 2009 the Coroners and Justice Act 2009 entered into force including a provision which allowed for an Inquiry under the 2005 Act to take place instead of an Inquest (paragraphs 37-38 below).

5. The Azelle Rodney Inquiry

On 30 March 2010 the Government announced its intention to establish an Inquiry under the 2005 Act into Azelle Rodney’s death, stating:

“It is intended that this inquiry will be chaired by a retired judge and that, subject to his or her views, it will determine the matters which an Article 2 compliant inquest would have determined had it been able to take place. These are: how, when and where Mr. Rodney died, and the broad circumstances which led to his death.

The inquest into the death has been adjourned by the north London coroner since August 2007. The coroner and, most importantly, the bereaved relatives of Mr. Rodney have been given advance notice of this decision.

During debate on the Coroners and Justice Bill, I said that any inquiry established because an inquest cannot be held would be subject to a protocol between Ministers and the senior judiciary. This protocol is intended to cover the procedure from the point the inquest cannot continue until when the inquiry is established.

I have been working with colleagues across Government on the terms of the protocol but it has raised some complex issues and is not yet ready for use. As the inquest into Mr. Rodney’s death is already adjourned and cannot continue, I have decided that an inquiry should be established to avoid further delay for Mr. Rodney’s family. A further announcement on the inquiry chair and its terms of reference will be made as soon as possible.”

By letters of 29 April and 20 May 2010 to the Treasury Solicitors, the applicant pursued the early establishment of the Inquiry. By letter dated 27 May 2010 the Treasury Solicitors responded, recognising the “unusual and considerable” delay and answering the applicant’s questions in detail.

On 10 June 2010 the Secretary of State for Justice announced the establishment of the Azelle Rodney Inquiry and the appointment of the Chairman. The terms of reference of the Inquiry were to inquire into “how, where and in what circumstances”, the applicant’s son came by his death and to make any such appropriate recommendations.

The Chairman designated the applicant, E7 (the police officer alleged to have shot Mr Rodney) and the Commissioner of Police of the Metropolis as core participants (paragraph 34 below).

In July 2010 the Chairman adopted a Protocol setting out the procedure which the Chairman would follow when a disclosure application was made, the Chairman reserving his ability to vary the procedure if necessary in the interests of fairness and to avoid unnecessary costs. That Protocol reads, in so far as relevant, as follows:

“4. On receipt of an application the Chairman will ask Counsel to the Inquiry to advise what, if any, disclosure should be made of the potentially restricted evidence to any other person for the purpose of determining the application. The substance of that advice will then be given to the person producing or providing the evidence and any other person making the relevant application, for their comments in writing. Exceptionally he may hear oral submissions.

5. The Chairman will then decide what, if any, disclosure to make of the potentially restricted evidence to any other person for the purpose of determining the application, and shall make that disclosure subject to the obligation of confidence referred to in paragraph 12(5) of the Rules.

6. Counsel to the Inquiry will then be asked to provide advice on the application, the substance of which will be sent to the applicant and, insofar as is practicable, to any other person interested in the outcome of the application.

7. The applicant and any other person interested in the outcome may then submit written comments on Counsel’s advice.

8. The Chairman will decide whether to hold an oral hearing and, if so, will give directions for its conduct. If he does not decide to hold such a hearing he will determine the application and inform the parties of the outcome.

9. The time within which any comments permitted to be made by this Protocol are to be delivered will be set from time to time by the Chairman.”

In August 2010 the Chairman adopted a Protocol on costs (applications for and grants of legal representation at public expense) and an anonymity Protocol (applications for and grants of anonymity), the Chairman reserving the ability to vary those procedures if necessary in the interests of fairness and to avoid unnecessary costs.

The Inquiry opened in public on 6 October 2010. Various submissions were made including on behalf of the applicant and, notably, concerning the delay to date and her wish for a public and transparent Inquiry. No rulings were made and a directions hearing was scheduled for oral submissions on the terms of an undertaking from the Attorney General. On 4 November 2010 those oral submissions were made.

On 4 April 2011 the Attorney General delivered an undertaking in respect of any person who would provide evidence to the Inquiry:

“Evidence” includes oral evidence, any written statement made by that person preparatory to giving evidence to the Inquiry or during the course of his or her testimony to the Inquiry, and any document or information produced to the Inquiry solely by that person.

No evidence a person may give before the Inquiry, nor any evidence as defined above, will be used in evidence against that person in any criminal proceedings, save that this undertaking does not apply to:

a) A prosecution where the person is charged with having given false evidence in the course of this Inquiry or having conspired with or procured others to do so; or

b) Proceedings where the person is charged with any offence under section 35 of the Inquiries Act 2005 or having conspired with or procured others to commit such an offence.

It is further undertaken that in any criminal proceedings brought against any person who provides evidence, as defined above, to the Inquiry, no reliance will be placed on evidence which is obtained during an investigation as a result of the provision by that person of evidence to the Inquiry. The undertaking does not preclude the use of information and/or evidence identified independently of the evidence provided by that person to the Inquiry.”

In June 2011 guidelines were adopted on the burden and standard of proof that would be adopted, the Chairman noting that the Inquiry approached its task on an inquisitorial rather than adversarial basis, that it had adopted no rigid rules of evidence and that there was consequently no burden of proof, or of disproof, on any interested party or witness nor was there a standard of proof which evidence had to attain before it could be considered an established fact. An entry on the internet site of the Azelle Rodney Inquiry dated 6 June 2011 confirmed that the Inquiry was in the process of contacting a large number of potential witnesses

The date for the substantive hearing is yet to be confirmed. The internet site also indicates that a number of the parties (including the IPCC and the MPS) have served a large volume of materials on the Inquiry which have to be evaluated and assessed so that oral hearings were not expected to begin before November 2011.

B. Relevant domestic law and practice

1. The Human Rights Act 1998 (“HRA”)

Article 6 of the HRA is entitled “Acts of public authorities” and it provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(6) provides that, while “an act” can include a failure to act, it does not include a failure to introduce in, or lay before, Parliament a proposal for legislation or make any primary legislation or remedial order.”

2. The Police Reform Act 2002 (“the 2002 Act”)

Section 24 of Schedule 3 to the 2002 Act is entitled “Action by the appropriate authority in response to an investigation report” and section 24(2) reads as follows:

“(2) On receipt of the [investigation] report or (as the case may be) of the copy, the appropriate authority–

(a) shall determine whether the report indicates that a criminal offence may have been committed by a person whose conduct was the subject-matter of the investigation; and

(b) if it determines that the report does so indicate, shall notify the Director of Public Prosecutions of the determination and send him a copy of the report”.

3. The Inquiries Act 2005 (“the 2005 Act”)

The 2005 Act came into force on 7 June 2005. Its objective is to provide a framework under which inquiries, set up by Ministers into events that have caused or have potential to cause public concern, can operate effectively to deliver valuable and practicable recommendations in reasonable time and at a reasonable cost. Section 2 is entitled “No determination of liability” and provides that:

“(1) An inquiry panel is not to rule on, and has no power to determine, any person’s civil or criminal liability.

(2) But an inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines or recommendations that it makes.”

Section 18 of the 2005 Act requires the Chairman to take such steps as he considers reasonable to ensure that members of the public have access to evidence provided to him subject to any restrictions imposed under section 19 of the 2005 Act. Section 19 permits the Chairman to impose restrictions on disclosure, subject to the conditions set out in sub-sections (3) to (5). In determining whether to impose any such restriction the Chairman may follow any procedure determined by him, pursuant to section 17 of the Act, and having regard to paragraph 12 of the Inquiry Rules 2006 (see directly below).

4. The Inquiry Rules 2006 (“the 2006 Rules”)

Rule 5 of the 2006 Rules permits the Chairman to designate a person as a “core participant”, which person will therefore have special participative rights.

Rule 12 (“Disclosure of potentially restricted evidence”) provides:

“(1) In this rule -

(a) “potentially restricted evidence” means any evidence which is in the possession of the inquiry panel, or any member of the inquiry panel, and which is the subject of a relevant application which has not been determined or withdrawn;

(b) “relevant application” means an application which is

(i) made by any person that evidence or documents are the subject of a restriction notice made by the Minister pursuant to section 19(2)(a) of the Act;

(ii) made by any person that the chairman exercise his discretion under section 19(2)(b) of the Act; or

(iii) made by any person that evidence or documents be withheld on grounds of public interest immunity,

and which entails the withholding of evidence from the public.

(2) Subject to paragraph (3), potentially restricted evidence is subject to the same restrictions as it would be subject to if the order sought in the relevant application had been made.

(3) Where the conditions in paragraph (4) are satisfied, the chairman may disclose the potentially restricted evidence to a person who would not otherwise be permitted to see it.

(4) The conditions are that -

(a) the chairman considers that disclosure to an individual is necessary for the determination of the application; and

(b) the chairman has afforded the opportunity to -

(i) the person providing or producing the evidence to the inquiry panel; or

(ii) any other person making the relevant application, to make representations regarding whether disclosure to that individual should be permitted.

(5) Any person who is shown potentially restricted evidence pursuant to paragraph (3) shall owe an obligation of confidence to the person who provided or produced the evidence to the inquiry.

(6) A breach of the obligation referred to in paragraph (5) is actionable at the suit of the person to whom the obligation is owed, subject to the defences applying to actions for breach of confidence.”

5. The Counter Terrorism Act 2008 (“the CTA”)

Section 74 of the CTA amended the Regulation of Investigatory Powers Act 2000 to allow the disclosure of intercept material to the panel of an Inquiry set up under the 2005 Act or to Counsel to such an Inquiry.

6. The Coroners and Justice Act 2009 (“the 2009 Act”)

Section 16 of the 2009 Act is entitled “Investigations lasting more than a year” and provides as follows:

“(1) A senior coroner who is conducting an investigation under this Part into a person’s death that has not been completed or discontinued within a year:

(a) must notify the Chief Coroner of that fact;

(b) must notify the Chief Coroner of the date on which the investigation is completed or discontinued.

(2) In subsection (1) "within a year" means within the period of 12 months beginning with the day on which the coroner was made aware that the person’s body was within the coroner’s area.”

Schedule 1 to the 2009 Act provides for the suspension of an Inquest pending an Inquiry under the 2005Act.

COMPLAINTS

The applicant complains under Article 2 about the delay to date in holding an Article 2 compliant investigation into the death of her son in 2005. This delay has been mainly caused by an unjustifiable failure by the authorities to resolve in a timely manner the question of disclosure and admission into evidence of secret material at an Inquest or Inquiry.

The applicant submits that she has not therefore been sufficiently involved to date since she has not had access to all relevant material. She also submitted that any limited progress to date has been achieved by her persistence so the principle that the State must take the initiative to investigate has been violated.

QUESTION TO THE PARTIES

Has the investigation by the domestic authorities of the applicant’s son’s death been carried out sufficiently promptly for the purposes of Article 2 of the Convention (for example, Hugh Jordan v. the United Kingdom, no. 24746/94, §§ 136-139, ECHR 2001 III (extracts); McKerr v. the United Kingdom, no. 28883/95, §§ 114 and 154, ECHR 2001 III); and and Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 167, 7 July 2011)?