McBride v. the United Kingdom (dec.)

Information Note on the Court’s case-law No. 86

May 2006

McBride v. the United Kingdom (dec.) - 1396/06

Decision 9.5.2006 [Section IV]

Article 2

Article 2-1

Life

Readmission to the army of soldiers found guilty of murder: inadmissible

Article 14

Discrimination

Readmission to the army of soldiers found guilty of murder: inadmissible

The applicant is the mother of a young man who was shot dead by two soldiers serving in the British army. The two soldiers were prosecuted for his murder, convicted and sentenced to life imprisonment. They spent six years in custody, after which the Army Board, rather than discharge them, allowed them rejoin their unit. The applicant sought judicial review of the Army Board’s decision; a High Court judge ordered the Army Board to consider the matter afresh. A differently composed Army Board heard representations by the applicant and several intervening third parties and decided that exceptional reasons existed why the two soldiers should not be dismissed from the army. The applicant challenged this decision too. This time the High Court judge found that the Army Board had been entitled to reach the decision it had. The applicant appealed; the Northern Ireland High Court, in its decision, found that the reasons given by the Army Board in its second decision did not amount to exceptional reasons. This did not, however, cause the Army Board to dismiss the two soldiers. In a final decision, the High Court rejected the applicant’s application for judicial review of the Army’s failure to act in light of the ruling of the Court of Appeal, noting that the Court of Appeal had expressly declined to give a binding order.

Inadmissible under Article 2 – The essential purpose of the investigation required by Article 2 of the Convention is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. This investigation should be independent, accessible to the victim’s family, carried out with reasonable promptness and expedition, 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 or otherwise unlawful, and afford a sufficient element of public scrutiny of the investigation or its results. It cannot be in doubt that there was an investigation into the death of the applicant’s son which satisfied the above requirements: the two soldiers were prosecuted and found guilty of murder. The mere fact that the soldiers were allowed to rejoin their units after six years in prison cannot be regarded as either a flagrant rejection of the criminal conviction or cynical and retrospective approbation of the soldiers’ conduct which could be regarded as capable of undermining the efficacy of the earlier criminal proceedings in providing the appropriate deterrent and retribution. The applicant’s additional arguments touching on the future protection of citizens would appear somewhat hypothetical and speculative and certainly remote in consequence as regards any effect on the rights of this applicant. To the extent concerns might arise as to the composition of the armed forces and existence of appropriate disciplinary regulations and machinery, these would appear to be matters of general policy for public and political debate falling outside the scope of Article 2 of the Convention as applicable in this case. The procedures adopted in this case complied with the procedural obligation contained in Article 2 of the Convention and the applicant cannot claim to be a victim of any breach of that provision as regards the decision to retain the two soldiers in the army: incompatibleratione personae.

Article 14 – Article 2 is not engaged in relation to the decision to retain the soldiers in the army and consequently Article 14 cannot come into play either: incompatibleratione materiae.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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