FOURTH SECTION
Application no. 19563/11
Elizabeth McDONNELL
against the United Kingdom
lodged on 15 March 2011
STATEMENT OF FACTS
THE FACTS
1. The applicant, Ms Elizabeth McDonnell, is an Irish national, who was born in 1939 and lives in County Antrim. She is represented before the Court by Mr P. Ó Muirigh Solicitors, a lawyer practising in Belfast.
A. The circumstances of the case
2. This application concerns the death of the applicant’s husband, James McDonnell, who suffered a fatal heart attack on the 30 March 1996 while on remand at HMP Maghaberry. The facts, up to 12 September 2011, as submitted by the applicant are as follows.
1. Mr McDonnell’s death
3. On 6 January 1996 Mr McDonnell was remanded in custody to Crumlin Road Prison in Belfast. Since that prison had to close, all prisoners were to be transferred on 30 March 1996 to HMP Maghaberry.
4. On the morning of 30 March and prior to his transfer, Mr McDonnell was informed (along with his brother who was also on remand) that his father had died suddenly during the night. On hearing this news, the applicant claims that Mr McDonnell asked to be moved to a single cell. At 10.50 he was transferred to HMP Maghaberry. His cell was not ready on arrival so he waited in the recreation area. When a prisoner officer informed him that he would share a cell, Mr McDonnell said he would wreck it. A principal officer was informed. At 12.15 p.m. Mr McDonnell was informed his cell was ready and he said that he would hit the first prisoner who came into it. The principal officer was informed. At 2.10 p.m. another prisoner, with two prisoner officers, arrived to share the cell. Mr McDonnell said he wanted to be left alone; he left the cell and announced that he was going to the Punishment and Segregation Unit (“PSU”). There was then a scuffle between several prison officers and the deceased, which resulted in his being wrestled to the ground and physically restrained. The deceased was brought to a standing position and, while still restrained, he was taken to the PSU at approximately 2.20 p.m. A body search was carried out at the PSU with his consent. He was also examined by a medical officer, who noted that he had suffered bruising and grazing and was experiencing discomfort in his chest. The medical officer left at approximately 2.30 p.m. Statements later taken from prison officers and prisoners diverged as regards, inter alia, the circumstances of the incident, the level of restraint used and whether Mr McDonnell had been beaten or not.
5. At 3.45 p.m. on the same day Mr McDonnell was found unconscious in his cell in the PSU having suffered a heart attack. A number of unsuccessful attempts were made to resuscitate him. He was declared dead at 4.15 p.m. His cell was immediately sealed awaiting the Coroner and the RUC investigation team.
2. The initial investigation
6. The investigation into Mr McDonnell’s death was conducted by the Royal Ulster Constabulary (“RUC”). The cell was re-opened at 9.01 p.m., on the evening of his death, for the forensic examination. 21 statements were taken from prisoners in March and May 1996. While 18 prison officers were interviewed, statements were taken from eight of them in March 1996. Following the autopsy, those eight officers were again interviewed under caution about, inter alia, the injuries noted on the deceased’s body.
3. Medical Evidence
7. On 30 March 1996 the first autopsy was conducted on behalf of the Coroner by Professor Crane, the State Pathologist for Northern Ireland. Professor Crane noted that Mr McDonnell had suffered a fracture to the hyoid bone in the neck, consistent with being grasped by a hand and that it appeared that Mr McDonnell had suffered a heart attack some 12-24 hours prior to his death. He found that:
“[the earlier heart attack] ... could ... have precipitated a fatal upset in the heart rhythm at any time ... the possibility that the stress of the incident shortly before his death played some part in the fatal outcome cannot be completely excluded”.
8. Professor Vanezis carried out, on 2 April 1996, a further autopsy. His report noted that Mr McDonnell’s thyroid cartilage was also fractured and that there was bruising to the area. He could not exclude that stress suffered while being restrained contributed to the cause of death. Having considered Professor Crane’s autopsy, on 26 June 1997, Professor Vanezis produced a supplemental report confirming his own previous findings.
9. The Northern Ireland Civil Liberties Council requested a report from Dr Kirschner of the International Forensic Programme, Chicago. He considered the reports of Professors Crane and Vanezis as well as other material including statements from prisoners in the deceased’s cell block. Dr Kischner’s report of 7 September 1997 concluded:
“[I]t is my opinion within a reasonable degree of medical and scientific certainty that the injuries that James McDonnell suffered approximately one hour prior to his death were a direct and proximate cause of his death. It is furthermore my opinion that the cause of death should be recorded as: Myocardial Ischaemia due to Multiple Blunt Trauma Injuries and Near-Asphyxiation.”
10. At the Coroner’s request, Professor Knight, Consultant in Forensic Medicine and Pathology, reviewed the above three reports as well as primary autopsy data. On 30 June 1999 Professor Knight completed his report in which he agreed with the reports of Professor Crane and Vanezis. Professor Knight concluded that the immediate cause of death was a fatal heart attack, but he considered that the emotional and physical effects of the prior restraint could have been a contributory or precipitating factor. He considered the report of Dr Kirschner to be flawed in both fact and opinion.
4. The Director of Public prosecutions (“DPP”).
11. In January 1997 a file was presented to the DPP. On 16 May 1997 the DPP gave a “no prosecution” direction. While the DPP reviewed his decision in June and August 1999 on receipt of the reports of Professors Crane and Knight, he confirmed his decision not to prosecute.
12. Following the applicant’s enquiry by letter dated 5 August 2002, the DPP informed her about his decisions of 1997 and 1999.
5. The Serious Crime Review Team of the Police Service Northern Ireland (“PSNI”)
13. In 2004 this team of the PSNI, which replaced the RUC in 2001, reviewed the original investigation and concluded that extensive research into the case had not uncovered any new evidential material or investigative opportunities.
6. The Office of the Police Ombudsman
14. Further to the applicant’s criticism of the investigation, a Police Ombudsman report was prepared between 2008 and 2010. The Ombudsman requested Professor Vanezis to re-consider his report in the light of, inter alia, certain prisoners’ statements to the effect that the deceased complained to them in the PSU about his ribs being broken as he had been beaten during the altercation with the prison officers. On 2 May 2003 Dr Vanezis’ confirmed his view that Mr McDonnell had died from a heart attack but that stress relating to the restraint had contributed to his death. The Ombudsman report noted that, while statements had been taken from the eight prison officers involved in restraining Mr McDonnell, all had denied that they had done anything which could have contributed to his throat injury, with the result that his injuries had not been satisfactorily explained. It was hoped that the inquest would allow the family to seek answers to questions they had since 1996. Although the DPP investigation was thorough, its details had not been disclosed to the next of kin and, while that was not uncommon in 1996, the practice had changed to include family members as much as possible in an investigation.
7. The inquest
15. The inquest was listed for a hearing on 2 February 1998 but was adjourned until May 1999 to await the outcome of pending judicial review actions about legal aid for inquests (Sharon Lavery v. Secretary of State and Legal Aid Department [1999] NIQB; p. 6 and p. 1905).
16. In May 1999 the Coroner saw the report of Dr Kirschner. He adjourned the inquest to obtain another report from Professor Knight, which was completed in June 1999. The inquest was re-scheduled for November 1999. In the meantime, in September 1999 the Crown Solicitor’s Office advised that it would apply to maintain the anonymity of the prison officer witnesses. The hearing date of November 1999 was vacated because of that application but also to facilitate the attendance of Dr Kirschner.
17. In 2000 the inquest was further adjourned to allow the applicant to seek disclosure on foot of a new Home Office Circular (issued in April 1999) and to apply for funding from the Northern Ireland Human Rights Commission (NIHRC). That finding was later granted. The inquest was listed for hearing in early 2001.
18. In February 2001 the Inquest was again adjourned pending this Court’s judgment in Hugh Jordan v. the United Kingdom (no. 24746/94, ECHR 2001‑III (extracts)). No inquests were listed from September 2001 to February 2002 pending the amendment of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”).
19. Between January 2002 and March 2007 inquests which gave rise to Article 2 issues were adjourned pending judgments in judicial review actions concerning the scope of the inquest (Regina v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51; and R (Middleton) ν West Somerset Coroner ([2004] 2 A.C. 182) and concerning the application of Article 2 to deaths which pre-dated the Human Rights Act 2000 (In re McKerr ([2004] 1 W.L.R. 807; and Jordan v. Lord Chancellor and Another; and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14). Those latter judgments confirmed that Article 2 did not apply to such cases.
20. On 2 April 2008 an inquest hearing date was fixed for October 2008. On 10 October 2008 the Coroner was informed that issues concerning the anonymity of prison officers would take months to examine.
21. Between October 2008 and February 2010 no progress was made despite the applicant’s daughter’s contacts with the Coroner’s Office.
22. On 24 February 2010 the applicant’s new solicitors made detailed status enquiries of the Coroner’s Office and, notably, underlined that to date the applicant had received no disclosure. On 22 March 2010 the Coroner replied that he had received some documents from the PSNI, to whom he had written again seeking full disclosure by May 2010.
23. An inquest hearing, listed for 8 and 22 September 2010, was heard on 8 October 2010. The anonymity of prison officer witnesses and PSNI disclosure were debated. The Coroner ordered the PSNI to make disclosure by 19 November 2010 and he scheduled a hearing for 3 December 2011. Disclosure was not made as ordered and that hearing date was vacated. In late November 2010, the Coroner granted anonymity to prison officer witnesses. The applicant considered it futile to contest this pending disclosure of the prison officers’ statements.
24. On 23 March 2011 disclosure was received by the applicants from the PSNI. All prison-officer details were removed from the statements and no initials were retained, so that it was impossible to understand which officer was referred to at any given point in the statements. The applicant requested initials (“ciphers”). By letter dated 28 April 2011 the Coroner confirmed that the statements would be provided with ciphers and accorded to the applicant 21 days from receipt of those statements with ciphers to make submissions on anonymity and screening. Following reminders by the applicant to the Coroner in April, July, August and September 2011, in early September 2011 the statements with ciphers were provided to the applicant.
25. In August 2011 the NIHRC authorised the applicant to retain an independent pathologist given the disputed causation. The applicant’s expert (Dr. Cary, a forensic pathologist) required access to certain primary data concerning the autopsy (post-mortem photographs, histology slides and the pathologist contemporary notes). The applicant requested the Coroner to provide access to this material by letters of April and July 2011. While most of the data was furnished in September 2011, Dr Crane considered he should not disclose his contemporaneous autopsy notes. By letter dated 1 September 2011 to the Coroner, the applicant contested this refusal.
26. Further to the delivery of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009), the Supreme Court reversed the above-cited judgment in McKerr and accepted that an inquest should be compliant with Article 2 even for a pre-HRA death (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20).
B. Relevant domestic law and practice
27. The Court refers to the relevant domestic law and practice outlined in its judgments in McCaughey and Others v. the United Kingdom, no. 43098/09, §§ 68-89, 16 July 2013, and Hemsworth v. the United Kingdom, no. 58559/09, §§ 33-42, 16 July 2013.
COMPLAINTS
28. The applicant complained, under the substantive aspect of Article 2, about the use of excessive force by prison officers and about their failure to protect her husband given the restraint procedures used and given the inadequate medical care thereafter.
29. She also complained under the procedural aspect of that Article about a failure by the State to conduct an effective official investigation into his death. In particular, she considered the RUC investigation to be ineffective: video evidence, albeit not clear, existed and was not shown to the prison officers to assist identification of each and their roles; pursuing prison officers for perverting the course of justice did not appear to have been considered; the DPP refused to prosecute or to explain why not, in a case crying out for an explanation. In addition, the investigation was not independent. She also underlined the lack of public scrutiny of the investigation and her inadequate access thereto. Finally, she complained about inordinate and unjustified delay to date in holding the inquest.
30. She further complained under Article 13 that, until May 2011 (In the matter of an application by Brigid McCaughey and Another [2011] UKSC 20), she had no effective domestic remedy in respect of the alleged breaches of the procedural obligations of Article 2 of the Convention.
QUESTIONS
Has there been a violation of the substantive and/or procedural (investigative) aspects of Articles 2 and 3 of the Convention as regards the death of James McDonnell on 30 March 1996 ? Has there been a violation of Article 13 of the Convention as regards the rights guaranteed by Article 2 of the Convention? The parties are referred, in these respects, to the cases of, inter alia, McCaughey and Others v. the United Kingdom, no. 43098/09, 16 July 2013 and Hemsworth v. the United Kingdom, no. 58559/09, 16 July 2013 as well as to the further case-law references therein.
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