Information Note on the Court’s case-law No. 102
November 2007
Brecknell v. the United Kingdom - 32457/04
Judgment 27.11.2007 [Section IV]
Article 2
Positive obligations
Lack of independence of police force called upon to investigate allegations of security force collusion in the death of the applicant's husband: violation
Article 35
Article 35-1
Six month period
Government's argument that no new obligation to investigate unlawful killings arose as more than six months had passed since the original investigation had ended: preliminary objection dismissed
Facts: The applicant's husband was one of three men killed in an attack carried out by loyalist gunmen at a bar in Northern Ireland in 1975. Although responsibility for the incident was subsequently claimed by an illegal loyalist paramilitary organisation, the police were initially unable to identify any individual suspect. In the late 1970s they finally arrested two people – Laurence McClure, a reserve officer in the Royal Ulster Constabulary (RUC), and Elizabeth Shields – who admitted to having driven three people from the scene on the night of the attack. However, they denied any involvement in the killings or knowledge of the identity of the killers. They were charged with failing to disclose information relating to an offence. However, in 1981 the Director of Public Prosecutions decided not to pursue the charges, inter alia, on account of the delay in bringing the case to trial, the unlikelihood of a custodial sentence and the lack of any reasonable prospect of securing a conviction.
In 1999 a former police officer called John Weir, who had himself served a prison sentence for murder in a separate case, made allegations of RUC and Ulster Defence Regiment collusion with loyalist paramilitaries in the 1970s. He gave the names of various people he accused of involvement in the attacks carried out at that time, including those of four people he alleged were responsible for the attack in which the applicant's husband had died. An Irish television channel broadcast a programme in which Weir repeated his allegations. These then became the subject of police investigations on both sides of the Irish border, although the investigation in Northern Ireland was of limited scope as it focused on determining whether the allegations were sufficiently credible to require a full investigation. After analysing copies of statements Weir had made to the Irish police and a journalist the RUC interviewed a number of people under caution. No charges were preferred, however, and it was decided that no final view could be taken until Weir himself had been interviewed, which at that point was impossible because his whereabouts could not be traced. In November 2001 the RUC became the Police Service of Northern Ireland (PSNI). Subsequently, the case was referred for further assessment, initially by the Serious Crime Review Team (SCRT) and then by the Historical Enquiry Team (HET). The HET finally succeeded in meeting with Weir, but he refused to make a statement or to give evidence in court. According to the Government, the review process was close to conclusion; there were no more realistic leads to follow up and there was insufficient evidence to mount a further prosecution.
The applicant complained that the investigation carried out following Weir's allegations in 1999 of RUC involvement in her husband's death did not meet the requirements of Article 2. In particular, she complained of a lack of independence on the part of the investigating authorities, of a lack of public scrutiny and access to the investigation materials, of unwarranted delays and of ineffectiveness.
Law: The Court rejected the Government's argument that a strict six-month time-limit had to 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. As to whether a fresh investigation had been required, where there was 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 were under an obligation to take further investigative measures. The steps that it would be reasonable to take would vary considerably with the facts of the situation. The allegations made by Weir were serious, involving security force collusion in the systematic targeting of innocent civilians, and prima facie plausible, as they derived from a source who had been involved in such incidents and gave concrete details. The authorities had thus been under an obligation to verify the reliability of the information and the need for a full investigation and the Court's task was to verify whether the investigative measures carried out had complied with Article 2.
(i) Independence: The initial inquiries had been carried out by the RUC, which could not be regarded as sufficiently independent as its own officers had been heavily implicated by Weir's allegations. It was the RUC which had carried out the interviews with the persons named by Weir and been entrusted with the initial assessment of the credibility of his allegations. Although from November 2001 the conduct of the investigation had been taken over by the PSNI, which was institutionally distinct from its predecessor, and other bodies whose independence was not in doubt, this did not detract from the fact that for a considerable period the case had been under the responsibility and control of the RUC. In that respect, therefore, there had been a failure to comply with the requirements of Article 2.
(ii) Accessibility to the family and public scrutiny: This aspect of the procedural obligation did 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. The police appeared to have made efforts to meet with members of the family from about 2000 onwards and there was also correspondence between the police and the applicant's representatives. If only limited information had been passed on, it was not apparent that this had flowed from any obstructiveness or obfuscation rather than a lack of any concrete results. The applicant had not been excluded from the investigative process to such a degree as would infringe the minimum standard required under Article 2.
(iii) Promptness and reasonable expedition: The RUC had taken up the inquiries without undue delay and the absence of progress thereafter had largely been due to the lack of any strong leads and to difficulties in interviewing Weir, who had remained outside the jurisdiction, not to any wilful foot‑dragging or prevarication. A further factor was the considerable number of other cases that were also being reviewed over this period. No breach of these requirements had been made out.
(iv) Effectiveness: There had not been any significant oversights or omissions. The key traceable witnesses had been interviewed, and the available evidence collected and reviewed. The apparent errors or shortcomings of the RUC identified by the applicant could not be regarded as rendering the investigative process inadequate when viewed as a whole. As to whether a further prosecution should have been brought against McClure and Shield, the Court noted that they were relatively minor participants in the events and the authorities could reasonably take the view that attempting to revive or upgrade the previous charges would be either doomed to failure or unduly oppressive and thus not assist materially in bringing to account those principally responsible for the death of the applicant's husband. Nor was it apparent that a prosecution against any other person would have had any prospect of success given Weir's refusal to make a statement or give evidence. There had not been any culpable disregard, discernable bad faith or lack of will on the part of the authorities.
Conclusion: violation on account of the RUC's lack of independence (unanimously).
Article 41 – EUR 5,000 in respect of non-pecuniary damage.
Note: The Court also found violations of Article 2 on identical grounds in judgments delivered on the same day in four other United Kingdom cases: McCartney (no. 34575/04), McGrath (no. 34651/04), O'Dowd (no. 34622/04) and Reavey (no. 34640/04).
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This summary by the Registry does not bind the Court.
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