European Court of Human Rights

Information Note on the Court’s case-law No. 165

July 2013

McCaughey and Others v. the United Kingdom - 43098/09

Judgment 16.7.2013 See: [2013] ECHR 682 [Section IV]

Article 2

Positive obligations

Article 2-1

Effective investigation

Excessive delay in investigation into deaths at the hands of security forces in Northern Ireland: violation

 

Facts - The applicants were close relatives of two men who were shot dead by security forces in October 1990 in Northern Ireland. The police conducted an investigation and the file was passed to the Director of Public Prosecutions (“DPP”), who in 1993 issued a direction of no prosecution of the soldiers involved in the shooting. Subsequently, the coroner who was to hold an inquest into the deaths received certain papers from the police and the DPP. In 2002 the applicants wrote to the coroner asking when the inquest would be listed and requesting pre-inquest disclosure. They also sought disclosure from the Police Service Northern Ireland (PSNI). In October 2002 the first applicant’s husband issued judicial-review proceedings against the Coroner and the PSNI, challenging the latter’s retention of relevant documentation. Those proceedings culminated in a judgment of the House of Lords of 28 March 2007 requiring the PSNI to disclose to the Coroner such information about the deaths as the PSNI was then or thereafter able to obtain, subject to any relevant privilege or immunity. In 2009, following the judgment of the European Court in Šilih v. Slovenia, the first and third applicants began judicial-review proceedings arguing that the inquest was required to be Article 2 compliant. That submission was upheld by the Supreme Court (formerly the House of Lords) in a judgment of 18 May 2011 in which it held that the Coroner holding the inquest had to comply with the procedural obligations under Article 2. The inquest opened in March 2012 and ended at the beginning of May 2012. The jury considered that the soldiers involved in the operation in October 1990 had shot the deceased in the belief that their position was compromised and their lives were in danger and had thus used reasonable force. In June 2012 the first applicant requested leave to apply for judicial review of the inquest. Those proceedings are still pending.

In their application to the European Court the applicants made a number of complaints under the substantive and procedural aspects of Article 2 about the deaths of their relatives and, under Article 13 of the Convention, about a lack of an effective domestic remedy.

Law - Article 2

(a)  Admissibility - Save in relation to the complaint about investigative delay, the Court was not in a position to consider the merits of the complaints under the substantive and other procedural aspects of Article 2 because a civil action by the applicants was still pending and because, given the pending judicial-review proceedings, the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remained possible.

(b)  Merits - The Court reiterated that Article 2 requires investigations to begin promptly and to proceed with reasonable expedition; this is required quite apart from any question of whether the delay actually impacted on the effectiveness of the investigation. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential 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. It was striking that the inquest hearing proper had not begun until March 2012, more than twenty-one years after the deaths had occurred (although the inquest had proceeded quickly thereafter, ending in May 2012 with a detailed verdict). The overall period could be broadly divided into three phases.

The first, from 1990 to 2002, was marked by inordinately long periods of inactivity during which some (inadequate) disclosure was made by the Royal Ulster Constabulary (RUC) and its successor body the PSNI. The second, from 2002 to March 2012 was characterised by the applicants’ and others’ legal actions and initiatives which were demonstrably necessary to drive forward their inquests and to ensure the clarification of certain important aspects of coronial law and practice including, notably, those going to the rights of next-of-kin. The fact that it was necessary to postpone the applicants’ inquest so frequently and for such long periods pending clarifying judicial-review actions demonstrated that the inquest process itself was not structurally capable at the relevant time of providing the applicants with access to an effective investigation which would commence promptly and be conducted with due expedition. By the time the last and third phase began with the inquest hearing, the delay at that point was such that the High Court considered itself obliged to raise the threshold of leave to apply for judicial review to “exceptional circumstances”, which made the clarification of the procedural rights of the applicants exceedingly difficult and therefore rendered rather inescapable another post-inquest judicial-review action. That action was still pending before the High Court.

These delays could not be regarded as compatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths, in the sense that the investigative process, however organised under national law, must be commenced promptly and carried out with reasonable expedition. To that extent, the finding of excessive investigative delay of itself entailed the conclusion that the investigation was ineffective for the purposes of Article 2. No separate issue arose under Article 13.

Conclusion: violation (unanimously).

Article 46: The carrying out of investigations, including holding inquests, into killings by the security forces in Northern Ireland had been marked by major delays that remained a serious and extensive problem. Indeed, the Committee of Ministers had expressed concern about investigative delay as regards four other Court judgments (Hugh Jordan, Kelly and Others, McKerr and Shanaghan) which reflected a pattern of delay very similar to that in the applicants’ case and which it continued to supervise almost twelve years after they were delivered (see Committee of Ministers Resolution CM/ResDH(2009)44)

While it fell to the Committee of Ministers to address the issue of what - in practical terms - may be required of the respondent Government by way of compliance, the Court considered that, whatever the specific modalities chosen, this must involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests were pending, that the procedural requirements of Article 2 were complied with expeditiously.

Article 41: No claim made in respect of damage.

(See also Šilih v. Slovenia [GC], no. 71463/01, 9 April 2009, Information Note 118; and the Court’s judgments of 4 May 2001 against the United Kingdom in the cases of Hugh Jordan (no. 24746/94), McKerr (no. 28883/95), Shanaghan (no. 37715/97) and Kelly and Others (no. 30054/96))

 

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