CASE OF McKERR AND FIVE OTHER CASES AGAINST THE UNITED KINGDOM

Interim Resolution CM/ResDH(2007)73

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 III

(Adopted by the Committee of Ministers on 6 June 2007,
at the 997th meeting of the Ministers' Deputies)

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 referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the cases against the United Kingdom listed in Appendix III, 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 (these findings are summarised in Appendix III to this Resolution);

Recalling the first Interim Resolution on these cases (IntResDH(2005)20), adopted on 23 February 2005, which took stock of the measures taken or envisaged by the United Kingdom authorities until that date and called on the Government of the respondent State rapidly to take all outstanding general and individual measures in order to comply with the Court's judgments and to keep the Committee regularly informed thereof;

Recalling that at the Summit held in Warsaw in May 2005, the Heads of State and Government underlined among other things that member states must accelerate the execution of the Court's judgments;

General measures

Noting the additional information provided by the Government of the respondent State regarding the general measures taken or envisaged since the adoption of the first Interim Resolution (see Appendix I);

Welcoming the significant progress that has been made;

Recalling that on the basis of the developments which have taken place and the clarifications given, the Committee has thus been able at the 948th (DH) meeting (November 2005) to close its examination of several aspects, namely the issues regarding

- the role of the inquest procedure in securing a prosecution in respect of any criminal offence,

- the scope of examination of inquests,

- the compellability of witnesses at inquests,

- the disclosure of witness statements prior to the appearance of a witness at the inquest and

- legal aid for the representation of the victim's family;

Recalling that details of the measures adopted and the reasons for the Committee's decision to close these issues have been explained in the memoranda made public by the Committee (the latest being CM/Inf(2006)4 revised 2);

Noting however that several issues remained outstanding, which are considered below;

-The lack of independence of police investigators investigating an incident from those implicated in the incident

Stressing the importance of securing independent police investigations in all cases in which Article 2 of the Convention might be at issue;

Recalling further the longstanding practice of the Chief Constable of the Police Service of Northern Ireland (PSNI) to request that serious incidents involving police officers be investigated by officers from another police force (“calling in arrangements”);

Noting that the United Kingdom Government has recently assured the Committee that where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents;

Recalling that decisions not to “call in” are subject to judicial review if an application in this regard is made;

Recalling the establishment in 2000 of the Police Ombudsman who has the power to investigate complaints against the police, to supervise the investigation of complaints by the Chief Constable and to investigate other matters of her own motion;

Noting further that Section 55(2) of the Police Service (Northern Ireland) Act 1998 provides that, “The Chief Constable shall refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person”;

Noting the clarifications given as regards the Ombudsman's powers to efficiently investigate complaints, and the authority of the Ombudsman's findings in the context of the Prosecution Service's decision whether or not to initiate prosecution;

Noting also the Police Ombudsman's duty to liaise effectively with victims' families;

Noting that the Police Ombudsman is currently conducting a five-yearly review of the working of the police complaints system focused on the operation of the legislation governing the operation of the Police Ombudsman's office;

Stressing the importance for the Police Ombudsman to possess the necessary means and powers with a view to conducting effective investigations in conformity with the Convention requirements;

INVITES 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;

-Defects in the police investigations

Noting the improved safeguards for the independence of police investigations and their relevance for the efficiency of these investigations;

Recalling the establishment, on 28 March 2003, of the Serious Crimes 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 with interest the establishment in late 2005 of the Historical Enquiries Team (HET), which has the same task and powers as the SCRT, but specifically in relation to historical cases attributable to the security situation in Northern Ireland between 1968 and 1998;

Welcoming the family-centred approach of the HET;

Recalling that the competence of the Police Ombudsman also covers past cases which might also fall within the remit of the HET;

Emphasising the importance, in particular for the victims' families, of good coordination between the HET and the Police Ombudsman as regards cases in which both of them have an investigative role to play, and in this context welcoming ongoing discussions on the Ombudsman-HET Protocol;

Considering that the HET has only approximately a year ago started reviewing cases assigned to it;

Emphasising the need for rapid progress in the investigation into all past cases that fall within the remit of the HET and/or the Police Ombudsman;

WELCOMES the progress achieved as regards the establishment of appropriate institutions for the purpose of conducting effective police investigations;

INVITES 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 and by the Police Ombudsman;

-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

Noting that the Code for Prosecutors came into operation in June 2005, which among other things sets out the Prosecution Service's policy on the giving of reasons for non-prosecution, including in cases where death is, or may have been, occasioned by the conduct of agents of the state;

Noting further that decisions of the Prosecution Service not to prosecute are subject to judicial review if an application in this regard is made;

DECIDES to close its examination of this issue;

-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

Noting the clarifications the United Kingdom authorities have provided on the new procedure, established in 2004, regarding public interest immunity certificates in inquest proceedings according to which the decision whether to issue such certificates is now taken by the coroner or the judge as the case may be, and that when making such decisions these officials today have access to the relevant information;

Noting further that coroners' decisions regarding public interest immunity certificates are subject to judicial review if an application in this regard is made;

DECIDES to close its examination of this issue;

-The fact that the inquest proceedings did not commence promptly and were not pursued with reasonable expedition

Taking note of the recent extensive reforms of the Coroners Service in Northern Ireland;

Welcoming the statement made by the United Kingdom authorities that these reforms will significantly shorten the length of inquest proceedings and the time before which an inquest will be opened;

Noting however that no concrete result of these reforms is yet measurable, because of the recent date on which these reforms were implemented and by the fact that all cases are treated in chronological order;

INVITES the authorities of the respondent State to continue to keep the Committee informed as regards the concrete effects of the reforms of the Coroners Service of Northern Ireland, in particular on the length of inquest proceedings and the length of the period before an inquest is opened;

-The application of the package of measures to the armed forces

Taking into account that cases in which a death occurs that might have been caused by an army officer are investigated by the police;

Noting that all the above-mentioned improvements apply to investigations into incidents involving army officers in which Article 2 of the Convention might be at issue, also if the incident in question took place in the framework of a joint operation of the army and the police;

Noting in particular that the United Kingdom Government has recently assured the Committee that where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents arising from joint police/military operations;

DECIDES to close its examination of this issue;

Individual measures

Noting that the United Kingdom authorities view their obligations to take appropriate measures to implement the judgments in these cases as arising out of Article 46 rather than Article 2;

Recalling that the Court in principle refuses to indicate appropriate individual measures in such cases, but rather considers that it falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may be required in practical terms by way of compliance in each case;

Recalling in this regard 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 in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible”, and the Committee's consistent position that there is a continuing obligation to conduct effective investigations inasmuch as procedural violations of Article 2 were found by the Court in these cases (see inter alia the first Interim Resolution in these cases, ResDH(2005)20);

Noting with interest the information provided by the Government of the respondent State regarding individual measures to erase the consequences of the violations found in these cases for the applicants and in particular that the investigations are ongoing (see Appendix II);

Regretting however that in this field, as opposed to in the field of general measures, progress has been limited and that in none of the cases an effective investigation has been completed;

Stressing that the necessity of taking such measures is all the more pressing in these cases, considering the seriousness of the violations found and the time that has elapsed since the European Court's judgments became final;

URGES 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;

INVITES the Government of the respondent State to keep the Committee regularly informed thereof;

DECIDES to pursue the supervision of the execution of the present judgments until the Committee has satisfied itself that all general measures have been adopted and their effectiveness in preventing new, similar violations has been established and that all necessary individual measures have been taken to erase the consequences of the violations found for the applicants,

DECIDES therefore to resume consideration of these cases, as regards outstanding individual measures at each of its DH meetings and as regards general measures at intervals not longer than six months.

***

Appendix I to Interim Resolution CM/ResDH(2007)73

General measures

Additional information provided by the Government of the United Kingdom to the Committee of Ministers since the first Interim Resolution in these cases (Res/DH(2005)20) on general measures taken so far or envisaged to comply with the European Court's judgments

The Government of the United Kingdom recalls at the outset the information already provided and summarised in the first Interim Resolution in these cases (ResDH(2005)20), adopted at the 914th (DH) meeting (February 2005). They have provided the following additional information with respect to general measures to comply with the European Court's judgments in the present cases. This information is described in more detail in the memorandum on these cases (CM/Inf/DH(2006)4 revised 2) and in the addendum to this memorandum (CM/Inf/DH(2006)4 Addendum revised 3), both of which are public. The information below is categorised similarly as the information reflected in these documents.

A – Lack of independence of police investigators investigating an incident from those implicated in the incident

- Police Ombudsman

As regards the powers of the Police Ombudsman, legislation places a bar on the Ombudsman investigating matters which already have been the subject of disciplinary or criminal proceedings, except where there may have been a criminal offence or disciplinary proceedings, the case is grave or exceptional and there is fresh evidence. However, these conditions apply only to complaints made by members of the public to the Ombudsman. A number of public authorities (such as the Chief Constable or the Secretary of State) may also refer a case to her, and in some cases must do so. In this context, Section 55(2) of the Police Service (Northern Ireland) Act 1998 provides that “The Chief Constable shall refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person”. The Ombudsman may also, at her own discretion, begin an investigation. This power applies if it appears that a member of the police force may have committed a criminal offence or acted in a manner which would justify disciplinary proceedings and it is in the public interest for an investigation by the Ombudsman to take place. The Ombudsman has never been challenged over the exercise of her power to call herself into a case. Both the Chief Constable and the Ombudsman would take into account their respective obligations under the Convention, and Article 2 in particular, when considering the exercise of their discretion to refer or call-in a case.

The fact that a person has left the police force does not mean that they may not be investigated by the Ombudsman; what is relevant is whether or not a person was a member of the police force at the time of the incident under investigation. In the case of a person off duty, what is relevant is whether or not their status as a member of the police is relevant to the incident. A person who is no longer a serving police officer may no longer be the subject of disciplinary proceedings. This means that former officers are in the same position as other civilians when it comes to the powers the Ombudsman has to compel cooperation with an investigation. The legislation confers on the Ombudsman powers under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see section 56 of the Police (Northern Ireland) Act 1998), so that her powers are the same as those of the police. Whether or not the police or the Ombudsman have a power to compel cooperation in a particular case will depend on whether or not the person is a witness or a suspect.

Two examples of retrospective investigations carried out by the Police Ombudsman, in the cases of Brown and Devenny, have been provided to the Secretariat. In these cases the Ombudsman, after investigating the police handling of the respective investigations, made a number of recommendations to the Police Service of Northern Ireland (PSNI). The public statements she made in both cases can be found on her website at . The recommendations the Ombudsman made in these cases were implemented by the PSNI.

Where the Ombudsman finds evidential opportunities relating to the actions of police officers they will be exploited and, where appropriate, recommendations for prosecution forwarded to the Director of the Public Prosecution Service for Northern Ireland (DPP). Where evidence of crimes by individuals who are not police officers is uncovered this information will be passed to the PSNI for appropriate action.

The Public Prosecution Service disagreed with the recommendation of the Police Ombudsman on prosecution in roughly 3% of the cases that were transmitted.

As regards the average time needed for a Police Ombudsman investigation, more minor cases are dealt with by an informal resolution process requiring a minimal (informal) investigation and followed by a form of mediation. 91% of complaints suitable for informal resolution are referred within 3 days to the police who carry out the process which can normally be completed quite quickly. More serious cases would be dealt with by formal investigation and would ultimately involve the DPP and the Coroner. The average time for formal investigations to be completed is 117 days. This includes time taken up by the Coroner and the DPP fulfilling their role.

The Police Ombudsman has an extensive family liaison process. This involves the appointment of a named family liaison officer, with an identified telephone number, who is available to families as reasonably required. Families will be updated at 6-weekly intervals on the progression of the investigation. This process is quality assured and the most recent quality assurance tests indicate that such updating is occurring in 81% of cases. The Police Ombudsman has a target for the incoming year of ensuring that 90% of families are updated on a six-weekly basis. Ultimately the aim is to update all families every six weeks. The assumption is that information should be shared with families unless there are cogent reasons to withhold such information. There is a provision of the Police (Northern Ireland) Act 1998 which makes it a criminal offence for staff to disclose information other than in accordance with the Act. However this does not prevent proper disclosure of information to families.

The Police Ombudsman is aware that families need as much information as can be factually proved, as rapidly as it becomes available. Material made available to families has included information in relation to informants, intelligence held by the Royal Ulster Constabulary(RUC)/PSNI, police processes and practices, and the reasons given by officers in justification of their actions. The Police Ombudsman recognises the need to protect informants and also the need to protect sensitive investigation methodology. On occasion witnesses have also stated that they have been threatened or intimidated when they have given evidence to the Police Ombudsman's investigators, and the need to protect such witnesses means that details of their addresses etc will not be released. On occasion the Police Ombudsman has refrained from giving families information because disclosure of the information could prejudice an ongoing trial (accused persons could argue that the release of information would prejudice their ability to defend themselves). In those circumstances (and they are rigorously assessed) the Police Ombudsman will inform the families of matters in so far as it is possible, and will advise them that at the conclusion of the ongoing criminal proceedings further disclosure will be made to them.

A five-yearly review of the working of the police complaints system by the Police Ombudsman is currently ongoing. The review focuses on the operation of the legislation governing the operation of the Police Ombudsman's office. It is a large exercise involving extensive consultation both internally and externally. The review is expected to be completed in autumn 2007. When the review is completed and presented to the Secretary of State, the Northern Ireland Office will respond to its content.

- “Calling-in” arrangements

The arrangements used by the PSNI as regards calling-in arrangements have worked and continue to work well.

Generally, a decision to “call in” outside assistance will be initiated by the Chief Constable himself. In other cases, for example, cases which might fall within the remit of the Historical Enquiries Team (HET) (see under B), the decision to call in outside assistance may be taken by the Chief Constable after a considerable level of discussion with the Northern Ireland Office and other stakeholders, including the families. The decision to use outside assistance, however, remains a decision for the Chief Constable.

Section 55(2) of the Police Service (Northern Ireland) Act 1998 provides that “The Chief Constable shall refer to the Ombudsman any matter which appears to the Chief Constable to indicate that conduct of a member of the police force may have resulted in the death of some other person”.

Where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents.

The decision by the Chief Constable whether or not to call in an outside force is subject to judicial review.

The question of resources is in general not decisive in the decision to “call in” assistance from another police service. In Northern Ireland there are no cases where resources, or a lack of resources, has been decisive in any decision to “call in” or not.

B - Defects in the police investigation

The United Kingdom authorities have indicated that, on 28 March 2003, the Chief Constable of the PSNI established the Serious Crimes Review Team (SCRT), whose remit is “to review a number of unsolved major crimes, including murder and rape, where it is thought that new evidential leads may be developed”. If, as a result of this review, it appears that new evidence might come to light, reinvestigation of any of the present cases might follow.

The PSNI, with the support of and funding from the Northern Ireland Office, has established a new unit of the SCRT, that is dedicated to re-examining all deaths attributable to the security situation in Northern Ireland between 1968 and the Good Friday Agreement in 1998 (“the Troubles”). This Historical Enquiries Team (HET) has been designed to provide a thorough and independent reappraisal of unresolved cases, with the aim of identifying and exploring any evidential opportunities that exist. The HET is operationally independent and reports directly from its Head of Branch to the Chief Constable.

The review process is designed to be exhaustive, and includes a re-examination of all documentation, any exhibits associated with the case and any intelligence on the case (both internal, partner agencies and open source). The intention is to take advantage of any developments in forensic science (e.g. fingerprint technology, DNA possibilities) to identify any evidential opportunities arising from witnesses (either people never seen or where the passage of time allows for changed loyalties etc), and to exploit any potential opportunities from intelligence that may have arisen since or which were not used at the time.

If evidential opportunities are identified during the review process by the HET, the investigation of the death will proceed and where there is credible evidence available reports will be forwarded to the Public Prosecution Service with a view to prosecution. The investigation process will be undertaken 'in-house' by the HET, and will be focused on the evidential opportunities that the review process identifies.

The first and primary objective of the HET is to provide a 'family centred' approach, seeking to identify and address issues that are unresolved from the families' perspectives. The HET's intention is to address, as far as possible, all the unresolved concerns that families raise. A bespoke Family Liaison Strategy has been designed, comprising a help desk, individual liaison officers for families and access for families to the two senior commanders in any case that is required. The principle that the HET adopts in dealing with families, underwritten personally by the Chief Constable, is maximum permissible disclosure, in line with legal and ethical considerations.

As regards the possible interplay between the HET and the Police Ombudsman with regard to historical cases, the HET have a very good working relationship with the Office of the Police Ombudsman (OPONI). Since the inception of the unit, discussions have taken place on how issues that affect each agency, within individual or linked cases, can be progressed. A programme of minuted meetings has been instituted, at strategic (monthly), tactical (weekly) and operational (as required) levels. The HET have provided office space and IT support for an OPONI presence at the HET site. To preserve the independence of each party, discussions are continuing on how a parallel investigation process can best be managed in relevant cases. At present, the HET's view is that those cases that allegedly involve the actions of police officers exclusively will be reviewed by the Ombudsman alone, however the HET is committed to supporting them in any way possible that legislation allows. In those cases of parallel investigation (e.g. some police and some external collusion alleged) the meetings structure is designed to facilitate prompt exchange of relevant information and co-ordinated investigative response.

C – 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 Code for Prosecutors came into operation on 13 June 2005. The Code, among other things, sets out the Prosecution Service's policy on the giving of reasons for decisions not to prosecute. It states that, “the Prosecution Service recognises that there may be cases arising in the future, which it would expect to be exceptional in nature, where an expectation will arise that a reasonable explanation will be given for not prosecuting where death is, or may have been, occasioned by the conduct of agents of the State. Subject to compelling grounds for not giving reasons, including duties under the Human Rights Act 1998, the Prosecution Service accepts that in such cases it will be in the public interest to reassure a concerned public, including the families of victims, that the rule of law has been respected by the provision of a reasonable explanation. The Prosecution Service will reach a decision as to the provision of reasons, and their extent, having weighed the applicability of public interest considerations material to the particular facts and circumstances of each individual case.”

The Code itself is not binding but it gives rise to obligations that can be enforced in law. Judicial review is possible under two heads. Firstly, a freestanding challenge to a failure to give detailed reasons for a decision not to prosecute would be possible under the Human Rights Act, based on the failure to conduct an Article 2-compliant investigation. The possibility to bring such a challenge existed independently of any Code for Prosecutors. Secondly, in accordance with a well developed doctrine in domestic law in the United Kingdom, if a public body states that it will follow a given policy, this creates a legitimate expectation that the body will follow that policy unless there exist compelling reasons not to do so. Judicial review is possible on the basis of this legitimate expectation and is therefore possible on the basis of legitimate expectations arising out of the Code.

On a judicial review of a decision by the Prosecution Service in respect of the giving of reasons for not prosecuting, the court will review whether the reasons given in that case were in accordance with the Code for Prosecutors and were capable of supporting the decision not to prosecute. Such review will be conducted on the basis of consideration by the court of relevant correspondence and affidavit(s) sworn on behalf of the Prosecution Service for the judicial review proceedings. Generally, the court will also have access to relevant witness statements upon which the decision for no prosecution was made by the Prosecution Service.

It is open to the court to conclude that the reasons given are manifestly bad reasons and that the maker of the decision for no prosecution had failed to take relevant matters into account or had taken irrelevant matters into account. In such circumstances the court would almost certainly grant an order of certiorari. The effect of such an Order is to quash the original decision for no prosecution. This would require the Prosecution to reconsider the case and come to a fresh decision on prosecution.

The United Kingdom authorities have provided several examples of decisions on judicial review of decisions by the prosecutor not to prosecute.

D – The inquest procedure did not allow any verdict or findings which might play an effective role in securing a prosecution of any criminal offence and E - The scope of the examination for the inquest was too restricted

By way of example of the application in practice of the principles set out in the Middleton case (R v. Her Majesty's Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent) [2004] UKHL 10) and in the case of Jordan ([2004] NICA 29 and [2004] NICA 30), the United Kingdom authorities provided a total of eleven copies of verdicts on inquests. These included both narrative verdicts and verdicts in which the jury made detailed findings of fact in response to a list of specific questions asked by the coroner.

F – The persons who shot the deceased could not be required to attend the inquest as witnesses

The United Kingdom authorities referred to the information previously provided to the Committee, summed up in the first Interim Resolution in these cases (ResDH(2005)20 of February 2005).

G – 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 Northern Ireland Court Service has contacted all coroners in its jurisdiction, and all of the coroners confirmed that in Article 2 cases where there is no public interest immunity certificate, families of the deceased will be given witness statements and will be informed of the relevant information that the coroner has, as soon as the relevance of the information and the absence of such a certificate has been established.

H – Absence of legal aid for the representation of the victim's families

The United Kingdom authorities referred to the information previously provided to the Committee, summed up in the first Interim Resolution in these cases (ResDH(2005)20 of February 2005).

I –The public interest immunity certificate in McKerr had the effect of preventing the inquest examining matters relevant to the outstanding issues in the case

Public interest immunity issues at inquests are dealt with in the same manner as in litigation, but modified to take account of the coroner's inquisitorial role. If the coroner identifies documents which contain material the disclosure of which would cause real damage to the public interest, for example the identity of an informant, revelation of whose role would put his or her life at risk (thereby engaging Article 2 of the Convention), then it will be for the relevant Minister (or the Chief Constable) to decide whether a claim for public interest immunity should be asserted. 

The Minister (or Chief Constable) will conduct a balancing exercise between the damage to the public interest if the material was disclosed and the public interest in disclosure. If he considers the balance falls in favour of disclosure he will not assert a claim for public interest immunity and the material will be disclosed. If he considers the balance falls against disclosure he will assert a claim for public interest immunity. Whether the claim for public interest immunity is asserted by a Minister or by the Chief Constable will depend on the nature of the information which is to be protected and whether a certificate is required. At present in Northern Ireland all public interest immunity certificates are signed by Ministers.

If the Minister (or Chief Constable) decides to assert a claim for public interest immunity, the coroner will in turn conduct a similar balancing exercise. He may examine the documents in order to carry out that exercise. The coroner will then make his own decision as to where the balance of the public interest falls. That decision may be that may be that the balance falls in favour of disclosure or against. The coroner is not bound by the Minister's (or Chief Constable's) decision to assert a claim for public interest immunity. If the coroner decides the balance falls in favour of disclosure the document will be disclosed unless the Minister (or Chief Constable) successfully applies for judicial review. A decision by the coroner in agreement with the Minister's (or Chief Constable's) public interest immunity claim could also be challenged by judicial review. Therefore, a judicial authority makes the ultimate decision about whether material should be disclosed or not, taking into account potentially competing Convention rights and the circumstances of the individual case.

The coroner's decision to allow or disallow a public interest immunity claim may be challenged by judicial review.

J – The inquest proceedings did not commence promptly and were not pursued with reasonable expedition

A paper on Modernising the Coroners Service in Northern Ireland was published by the Northern Ireland Court Service on 1 April 2005. This reforms proposed in this paper have been fully implemented and the new coroners service was launched on 14 June 2006. The programme included the following reforms:

- the creation of a single Northern Ireland coroners jurisdiction;

- the appointment of a High Court Judge as presiding judge for the Coroners Service;

- the creation of a full time coronial judiciary with the appointment of two new full time coroners to work alongside the existing senior coroner;

- the appointment of coroners liaison officers to provide an improved service to bereaved families, and

- new accommodation and a new computer system.

In addition, new information leaflets have been developed including a Coroners Service Charter which set out the service standards that can be expected, with specific regard to the families' rights to participate during coroners investigations and inquests.

The authorities indicated that these reforms will significantly shorten the length of inquest proceedings and the time before which an inquest will be opened. They have also indicated that the overall number of outstanding cases will decrease as a result of the new structure. However, there will always be a number of outstanding cases for reasons outside the coroner's control, for example, cases awaiting the receipt of a final post-mortem report.

Recent statistics available on inquest proceedings show that the average time between the date of death and the start of an inquest for the District of Greater Belfast in 2005 was 108.81 weeks. The coroners are targeting the oldest cases first to deal with the backlog of cases, and this has an impact on the statistics for average time frame. The number of cases pending before the coroner is 1,472. This was the figure at the end of 2005 and this figure excludes the district of North Antrim (which goes up to the end of June 2005). The figure of 1,472 includes all deaths reported to the coroner. In respect of the majority of these deaths the coroner is likely to decide no further investigation is required following inquiries or a post mortem, and that therefore an inquest should not be held.

K – Issues relating the application of the package of measures to the armed forces

The Police Ombudsman's competence to investigate complaints concerning police conduct extends to complaints concerning police investigations into deaths caused by members of the armed forces.

It is the Chief Constable's decision on whether to seek assistance from another police force (call-in). This remains the case where operations have been conducted jointly with the armed forces. In making such a decision the Chief Constable exercises his professional judgement. The Chief Constable is very conscious of the need to ensure that, in appropriate cases, an incident involving the armed forces is investigated by persons who are independent of those implicated in the incident.

Where the Chief Constable is satisfied that there are objective reasons to believe that an investigation by the PSNI would not be seen to be independent and no other independent investigation routes are available, he will promptly call in another Police Force to investigate the incident or incidents arising from joint police/military operations.

Decisions by the Chief Constable are, as stated under A, challengeable in the courts through judicial review.

The handling of complaints made against the Armed Forces depends on the specific nature of the complaint. All complaints alleging criminal conduct by soldiers are investigated by the PSNI and the Armed Forces fully cooperate with all such investigations as required. If, following investigation, the police decide a soldier may have broken the law, they will pass the evidence to the Public Prosecution Service which will decide if a prosecution should take place.

Non-criminal or informal complaints are dealt with by either the Civil Secretary at the Armed Forces' Headquarters Northern Ireland, Lisburn, or a Civilian Representative (Civ Rep), who will conduct an investigation locally. Significantly, as civil servants employed by the Northern Ireland Office, Civ Reps have an impartial status, acting as liaison between members of the local community and the Armed Forces. The vast majority of complaints are resolved informally, to the satisfaction of both parties. In some cases, the Claims Investigation Team (CIT), made up of Royal Military Police (RMP) personnel wholly independent of the military chain of command, will also conduct non-criminal investigations and enquiries. Their primary function is to investigate Litigation Claims lodged against the MOD.

Since 1993 there has been an Independent Assessor of Military Complaints Procedures (IAMCP), who reviews the Army's procedures for investigating non-criminal complaints against members of the Armed Forces in Northern Ireland, and in doing so seeks to reassure the public that there is independence in the procedures. He may periodically call in at the Headquarters in Northern Ireland to see files or to check on the procedures of an investigation and is given access to relevant files as required. The remit of the IAMCP is set out in Section 98 and Schedule 11 of the Terrorism Act 2000. Under his statutory terms the Assessor can investigate the handling of a, “complaint about the behaviour of a member of Her Majesty's forces under the command of the General Officer Commanding Northern Ireland,” and specifically: “(a) shall keep under review the procedures adopted by the General Officer Commanding Northern Ireland for receiving, investigating and responding to complaints to which this section applies, (b) shall receive and investigate any representations about those procedures, (c) may investigate the operation of those procedures in relation to a particular complaint or class of complaints, (d) may require the General Officer Commanding to review a particular case or class of cases in which the Independent Assessor considers that any of those procedures have operated inadequately, and (e) may make recommendations to the General Officer Commanding about inadequacies in those procedures, including inadequacies in the way in which they operate in relation to a particular complaint or class of complaints.” Further, as outlined in schedule 11, “the Independent Assessor may report to the Secretary of State on any matter which comes to his attention in the course of the performance of his functions.”.

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Appendix II to Interim Resolution CM/ResDH(2007)73

Individual measures

Information provided by the Government of the United Kingdom to the Committee of Ministers

on individual measures taken so far or envisaged to comply with the European Court's judgments

The United Kingdom authorities have underlined that they view their obligations in these cases as arising out of Article 46 rather than Article 2. The Government has confirmed its commitment to abide by the judgments of the Court in these cases and to implement the judgments, in accordance with Article 46. This commitment is not affected by the findings of the House of Lords in the McKerr judgment of 11 March 2004 (In re McKerr [2004] 1 WLR 807) that the Human Rights Act 1998 does not have retrospective effect and that under domestic law, there was no continuing breach of Article 2 in that case. The House of Lords' judgment does not address the question of the measures to be taken in implementation of the international obligations arising under Article 46.

In the latter respect, different factors are at issue in each case and some reveal more problems than others. Further proceedings have been conducted and the Government considers that any measures required are under way in each case. The main question, in the Government's view, is whether, on the facts in each case, a fresh investigation is actually possible. The Government concedes that new investigations in the present cases could not satisfy the Convention requirements in respect of promptness and expedition.

Information regarding the proceedings conducted prior to the judgment in each case is contained in the relevant judgments. The following information, provided by the Government, concerns the measures currently under way in each case:

In the Jordan case, the inquest opened in January 1995 experienced a serious of adjournments relating, inter alia, to a number of judicial review applications by the applicants or in similar cases. The inquest had been suspended pending the outcome of the family's petition to the House of Lords regarding the scope of the inquest. It is now open for the inquest to proceed following the House of Lords decision of 28 March 2007 in the cases of Jordan and McCaughey (Jordan v. Lord Chancellor and another (Northern Ireland; McCaughey v. Chief Constable of the Police Service Northern Ireland (Northern Ireland) [2007] 2 WLR 754).

Civil proceedings were also instituted in 1992 alleging death by wrongful act. The applicant wishes to await the outcome of the inquest before pursuing civil action further.

In the McKerr case, the family of Mr McKerr brought legal proceedings seeking to compel the Government to provide a fresh investigation into his death. These proceedings concluded with the House of Lords' judgment, delivered on 11 March 2004 ( reference above). In that case, the House of Lords declined to order a fresh investigation, as it considered that no right to an investigation in accordance with the procedural requirements of Article 2 of the Convention existed under domestic law at the time of the relevant events and that as such, there could be no continuing right under domestic law to such an investigation at present since the Human Rights Act (which came into force on 2 October 2000) did not apply retrospectively. The House of Lords left open, however, the question whether such a continuing obligation existed under international law in this case. Two of the five judges did not address the issue; the remaining three doubted that there was such an obligation. The House of Lords observed that the Committee of Ministers had not yet decided whether the Government's proposals for implementation (which did not at that time allow for further investigation into the death in McKerr) were sufficient. It may be recalled that the Committee has, since then, adopted the first Interim Resolution in these cases (Res/DH(2005)20).

The case is now a matter for the Police Ombudsman who is responsible for investigating deaths as a result of the actions of a police officer. She will identify possible further evidentiary opportunities and will look into the original police investigation conducted. The case has been referred to the Ombudsman in accordance with the HET/OPONI protocol and the Ombudsman has given an assurance to expedite the case as best she can. OPONI are aware of the issues associated with the case.

The Kelly and others case concerned a single incident in which nine men were killed. These deaths are among 3000 cases which fall within the terms of reference of the HET. The review process is currently underway. Progress depends on evidential leads, and it is therefore impossible to assess at this stage when a final conclusion will be reached.

As regards civil actions, the family of Anthony Hughes issued proceedings against the Ministry of Defence in 1988 and the case was settled in 1991. Six other families, including the Kelly family, issued proceedings in 1990 but the families have not set down the cases for hearing.

The Shanaghan case also falls within the terms of reference of the HET, since the perpetrator of the shooting was never identified. The HET are currently reviewing this case to assess if any new evidential opportunities exist. Research is ongoing in relation to fingerprints. The family met senior officers from the HET and have agreed to engage with the Team. Further engagement between the Senior Investigating Officer and the family have taken place. After this review, the HET will decide how to take the case forward. It is not possible to say at this stage when there will be an outcome from this review.

The applicant has taken no further steps in the civil proceedings commenced in 1994.

In the McShane case, an inquest was opened in May 1998 but adjourned pending the outcome of various legal proceedings and decisions at domestic level. However, a full-time coroner has now been assigned to this inquest which commenced in early 2005. He is now in the process of attempting to obtain further video footage of the incidents surrounding the death of Mr McShane as well as additional statements to which the Committee on the Administration of Justice might have access. In light of the hearing of the Jordan and McCaughey appeal in the House of Lords and following consultation with interested parties, including representatives of the deceased's family, the coroner had however indicated that he was not minded to list the inquest into the death of Mr McShane prior to judgment being given by the House of Lords. It is now open for the inquest to proceed following the House of Lords decision in Jordan and McCaughey. The coroner remains under an obligation to report to the Director of Public Prosecutions any evidence that comes to light at the inquest that appears to disclose that a criminal offence may have been committed.

This case will also be reassessed by the HET. They allocated the case to the Review and Investigation stage on 13 December 2006.

The applicant has not moved forward with civil proceedings brought against the Ministry of Defence and the Chief Constable of the Royal Ulster Constabulary.

In the Finucane case, two special police inquiries (the first two Stevens inquiries) were instituted to respond to concerns arising out of allegations of collusion between loyalist organisations and the security forces. The first of these two inquiries led to the reporting or charging of 59 people and the conviction of one person of conspiracy to murder persons other than Patrick Finucane. The second inquiry did not lead to the prosecution of any person.

The United Kingdom authorities have indicated that the third Stevens inquiry should be regarded as the individual measure aimed at fully executing the Court's judgment in this case. The investigation, which started in April 1999, is ongoing. The inquiry is squarely concerned with the Finucane murder. 17 individuals have so far been arrested in the course of the investigation in connection with the murder of Mr Finucane. One person has so far been successfully prosecuted for this murder.

On 15 April 2003, 63 files were submitted to the Prosecution Service by the Stevens Team. The subjects of some of these files are serving or former PSNI and Army personnel. These files remain under consideration by the Prosecution Service, which has kept close contact with the Attorney General regarding the issue.

In addition, the Government announced on 23 September 2004 that steps could now be taken to implement the decision to hold a new inquiry into this death. The inquiry will be held on the basis of the Inquiries Act 2005, which is designed to provide a statutory framework for a wide range of future inquiries, and its provisions are based to a large extent on existing legislation and practice. Most of the inquiries that will be held under it are in the Government's view not likely to engage Article 2. However, the Government is satisfied that, in those cases in which Article 2 is engaged, the Act is capable of being used to hold an inquiry that will discharge or contribute to the discharge of the state's obligations under that article to provide an effective official investigation. The Government also emphasised that the provisions of the Inquiries Bill had been scrutinised in great detail by Parliament, and that the House of Lords had made a number of amendments to strengthen the role of the inquiry chairman, to increase parliamentary involvement in inquiries and to provide for public access to inquiry records under the Freedom of Information Act 2000.

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Appendix III to Interim Resolution CM/ResDH(2007)73

Judgments concerning violations of the Convention by or involving allegations of collusion by the United Kingdom security forces pending before the Committee of Ministers for supervision of execution

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

In the above cases the Court found that there had been a violation of Article 2 of the Convention in respect of various failings in the investigative procedures concerning the death of the applicants' relatives. The various failings may be summarised on a case-by-case basis as follows:

- Lack of independence of police investigators investigating the incident from the officers or members of the security forces implicated in the incident

Jordan, McKerr, Kelly and others, Shanaghan, McShane, Finucane

- The independent police investigation did not proceed with reasonable expedition

McKerr, McShane

- Lack of public scrutiny and information to the victims' families on the reasons for the decision of the Director of Public Prosecutions not to prosecute any officer in respect of relevant allegations

Jordan, McKerr, Kelly and others, Shanaghan, Finucane

- The inquest procedure did not play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed

Jordan, McKerr, Kelly and others, Shanaghan, McShane, Finucane

- The scope of examination of the inquest was too restricted

Shanaghan, Finucane

- There was no prompt or effective investigation into allegations of collusion

Shanaghan, Finucane

- The persons who shot the deceased, and in the McShane case, the soldier who drove the armoured personnel carrier that fatally injured the applicant's husband, could not be required to attend the inquest as witnesses

Jordan, McKerr, Kelly and others, McShane

- The non-disclosure of witness statements prior to the appearance of a witness at the inquest prejudiced the families' ability to prepare for and to participate in the inquest and/or contributed to long adjournments

Jordan, McKerr, Kelly and others, Shanaghan, McShane

- The absence of legal aid for the representation of the victim's family

Jordan 

- The public interest immunity certificate had the effect of preventing the inquest from examining matters relevant to the outstanding issues in the case

McKerr

- The inquest proceedings did not commence promptly and did not proceed with reasonable expedition

Jordan, McKerr, Kelly and others, Shanaghan, McShane

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