Information Note on the Court’s case-law No. 73
March 2005
Bubbins v. the United Kingdom - 50196/99
Judgment 17.3.2005 [Section III]
Article 2
Article 2-2
Use of force
Shooting of person during siege as he had failed to heed police orders: no violation
Article 13
Effective remedy
No provision in domestic law for non-pecuniary damage even if civil liability of police were to be established:violation
Facts:The applicant’s brother, Michael Fitzgerald, was shot dead by the police at his flat following a siege lasting almost two hours. As Mr Fitzgerald had appeared to aim a gun at one of the police officers and had not responded when ordered to drop it, a police officer had fired one shot, which had killed Mr Fitzgerald. Only on very close examination of his weapon was it revealed to be a replica. The matter was voluntarily referred to the Police Complaints Authority. The police investigation report was sent to the Director of Public Prosecutions, who concluded that there was no evidence to justify any criminal proceedings against any police officer. The Police Complaints Authority confirmed the findings. Following an inquest and after the Coroner had directed that as a matter of law the only possible verdict was lawful killing, the jury returned that verdict. The applicant’s request for legal aid to pursue proceedings for judicial review of the inquest verdict was refused by the Area Committee of the Legal Aid Board, as was a subsequent appeal.
Law:Article 2 (obligation to protect the right to life) – As regards the actions of the police officer who had fired the fatal shot, there was no reason to doubt that he had honestly believed that his life had been in danger and that it had been necessary to open fire in order to protect himself and his colleagues. Moreover, the Court could not substitute its own assessment of the situation for that of an officer who had been required to react in the heat of the moment to avert an honestly perceived danger to his life. The officer had found himself confronted by a man pointing a gun at him. That man had ignored previous warnings to give himself up and, in defiance of these warnings, had conveyed on occasions a clear impression that he would open fire. Even before discharging the fatal shot, the officer had shouted a final warning, which had gone unheeded. The use of lethal force in the circumstances of this case, albeit highly regrettable, had not been disproportionate and had not exceeded what was absolutely necessary to avert what was honestly perceived by the police officer to be a real and immediate risk to his life and the lives of his colleagues.
As regards the planning and control of the operation, the Court observed that the conduct of the operation had remained at all times under the control of senior officers and that the deployment of the armed officers had been reviewed and approved by the tactical firearms advisers who had been summoned to the scene. Furthermore, the use of firearms by the police as well as the conduct of police operations of the kind at issue were regulated by domestic law and a system of adequate and effective safeguards existed to prevent arbitrary use of lethal force. The key officers had all been trained in the use of firearms and their movements and actions had been subject to the control and supervision of experienced senior officers. It had therefore not been shown that there had been a failure to plan and organise the operation in such a way as to minimise to the greatest extent possible any risk to the life of Mr Fitzgerald. In sum, his killing had resulted from the use of force which had been no more than was absolutely necessary.
Conclusion: no violation (unanimously).
Article 2 (obligation to conduct an effective investigation) –The Court had already had occasion to conclude that the inquest procedure in England and Wales was capable of fulfilling the Article 2 requirements of an effective investigation into an alleged killing by State agents. In the instant case the inquest had been held over a four-day period. Many witnesses had been heard. The jury had visited the scene of the incident. Even if refused legal aid, the family had been legally represented throughout the proceedings by experienced counsel. If an independent judicial officer such as a Coroner decided after an exhaustive public procedure that the evidence heard on all relevant issues clearly pointed to only one conclusion, and did so in the knowledge that his decision might be subject to judicial review, it could not be maintained that this decision impaired the effectiveness of the procedure.
Conclusion:no violation (unanimously).
Article 13 of the Convention – Although the inquest procedure had provided in the circumstances an effective mechanism for subjecting the circumstances surrounding the killing of Mr Fitzgerald to public and searching scrutiny, and had thereby satisfied the respondent State’s procedural obligations under Article 2, no judicial determination had ever been made on the liability in damages, if any, of the police on account of the manner in which the incident had been handled and concluded.
It was true that the Coroner’s jury had returned a verdict of lawful killing at the close of the inquest. However, that finding could not be said to have determined the issue of whether or not any civil liability attached to the police, a matter which had to be resolved in a different domestic fact-finding forum and according to different principles of law and in application of a different standard of proof.
The Court had already had occasion to declare that in the case of a breach of Articles 2 and 3 of the Convention, compensation for the non-pecuniary damage flowing from the breach should, in principle, be available as part of the range of redress. In the instant case, the applicant, even if ultimately successful in a civil action against the police, would have had no prospect of obtaining compensation for non-pecuniary damage since domestic law did not provide for such. On that account, it would also have been most improbable that she would have received legal aid to take civil proceedings.
Conclusion:violation (6 votes to 1).
Article 41 – The Court awarded the applicant EUR 10,000 for non-pecuniary damage. It also made an award for costs and expenses
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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