FOURTH SECTION
DECISION
Application no. 6788/12
Jeannie RITCHIE and others
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 13 November 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 19 January 2012,
Having deliberated, decides as follows:
THE FACTS
A. The circumstances of the case
1. The 16 applicants are the widows and children of seven fishermen who died at sea in 1974 whilst fishing in Scottish waters in their trawler called the Trident. A list of the applicants is set out in the attached appendix.
2. The facts of the case, as submitted by the applicants and as described in the documents provided by them, may be summarised as follows.
1. The loss of the Trident
3. The Trident was built in 1971-3 and handed over to its owners, Mr David Tait and Mr Alexander Ritchie (the latter of whom died in the accident), on 31 March 1973. The construction of the ship was financed by a loan from the White Fish Authority, a public authority established to reorganise, develop and regulate the white fish industry. Although the contract required that the Trident should meet the stability standards recommended by the Inter-Governmental Maritime Consultative Organisation (IMCO) and that on completion it should undergo an inclining test to establish this, no such test was carried out.
4. From 31 March 1973 onwards, the Trident was engaged in group fishing in all weathers off Scotland. Later in 1973 the captain of another trawler, the Silver Lining, which had been built by the same firm with a similar, but not identical, design to the Trident, reported his concerns about the “rolling” motion of his vessel to the White Fish Authority. He was issued with a stability booklet by the White Fish Authority advising that further ballast be used to improve stability, as was the captain of the Trident.
5. On 3 October 1974 Trident disappeared without having given any distress signal. An exhaustive search was carried out of the area where, based on the last radio contact, it was assumed that it had run into trouble, but no trace of the crew or any wreckage, save for a quantity of fish boxes and a few other loose articles, were found.
6. Following the loss of the Trident, the Silver Lining was withdrawn from service and given a stability test. It was found to be fractionally below the minimum stability recommendations and modifications were made to its structure before it was returned to fishing.
2. The formal investigation
7. A formal investigation under the Merchant Shipping Act 1894 into the loss of the Trident was held by a sheriff and two assessors in June 1975, with the report published on 12 September 1975. The Department of Trade; the White Fish Authority, the liquidator of the company which had built the Trident, the ship’s designer, Mr Tait (the part-owner), and the personal representatives of Mr Ritchie and the other deceased crew members were parties to the investigation and legally represented. The court proceeded on the basis that the Trident had been lost in an area where, at the time in question, there had been no significant weather problems. It concluded that the lack of any distress call indicated that the Trident must have foundered suddenly, probably as a result of a large and unexpected wave depositing a heavy weight of water on deck. The inquiry considered whether any other factor might have contributed to the casualty and identified inadequate stability as the only likely cause. Evidence was taken from the parties and other witnesses, including experts, based on what was known about the stability of the Trident’s sister ship (the Silver Lining) and of hypotheses about the amount of fuel and ballast likely to have been carried by the Trident at the time of the accident. Having reviewed all the evidence, the court reached the conclusion that:
“reliance cannot be placed on the soundness of the design of the Trident; that she was probably of inadequate stability; that the last radio conversations with her indicated that in her then state of loading and in the prevailing weather conditions, her deficiencies were showing up markedly; that in all the circumstances it would be unrealistic to conclude that her loss was due solely to the action of the sea; and finally, that inadequate stability is the factor most likely to underlie her foundering in conditions which would not normally have overwhelmed a ship of her size.
In the course of the Inquiry, attempts were made to suggest that one or others of the parties should be held responsible for the loss of Trident. None of these cases was established. In particular, the Court is entirely satisfied that no case was made out against Mr Tait, part owner of the vessel. His experience of Trident at sea gave him no reason to suppose her at risk ... An attack was also made on the White Fish Authority, but this was based on an erroneous view of their interest and function (no doubt encouraged by the terms of their letters). Lastly, the builders ... were criticised for their failure to carry out an inclining test. While this undoubtedly led to great difficulty at the Inquiry in investigating the characteristics of Trident, no attempt was made in evidence to show that at the time in question it, or any aspect of the design of Trident, involved ‘wrongful neglect’. The Court cannot embark on this subject without evidence.
The problem of standards of stability of trawlers generally is under active consideration and it is understood that the design of Trident and Silver Lining will be the subject of detailed tests. This Inquiry can contribute nothing new to these studies.”
8. On receiving the results of the formal investigation the applicants took legal advice as to whether it would be possible to bring civil proceedings for damages for negligence against any person. In 1977 the son of one of the crew members who died on the Trident applied for legal aid to bring a case against the Department of Trade, but his application was refused.
3. The National Maritime Institute Report
9. As part of the investigation into the loss of the Trident, the National Maritime Institute (NMI) was requested by the Department of Trade to carry out experiments with models in an effort to discover whether there were any obvious hydrodynamic reasons for the casualty. The experiments were carried out in a water tank with a wave-maker using two model boats, one of which was similar in design to the Trident and the other of which was different in that it had a round stern. The results of the tests were published in the NMI report, dated 22 October 1976. It found that once circling manoeuvres were attempted in breaking waves of modest severity, the model similar to the Trident was immediately at risk of capsize whereas the comparison model did not capsize. The report concluded that the Trident-type vessel had insufficient stability at rest and that even boats of this type constructed to comply with the IMCO minimum standards (see paragraph 3 above) were at risk of capsize. The applicants were not made aware of the NMI report at the time it was published.
4. The Rehearing of the formal investigation
10. In June 2001 amateur divers found the Trident intact on the seabed. The Marine Accident Investigation Branch of the Department of Transport commissioned a video survey by a remotely operated vehicle. The survey was completed early in August 2001.
11. On 28 March 2002 the Secretary of State ordered a rehearing of the formal investigation into the loss of the Trident, as required under section 269(1) of the Merchant Shipping Act 1995 where new and important evidence which could not be produced at the original investigation was discovered. The applicants were invited to become parties to the investigation and the Department of Transport agreed to make public funds available to cover their reasonable and necessarily incurred legal costs and expenses, including representation by solicitors and counsel, and by a QC from February 2010. A preliminary hearing at Aberdeen Sheriff Court was held in 2002 and a Joint Panel of Experts (JPE) appointed to assist the court. The JPE consisted of independent technical experts appointed by the Advocate General for Scotland and others appointed by the persons who had indicated their intention to appear as parties to the investigation, namely Mr Tait, the Trident’s designer, the Seafish Industry Authority (which had taken over the responsibilities of the White Fish Authority) and the applicants.
12. For the purposes of the investigation, a detailed underwater survey was undertaken in June 2006, which involved cutting open some parts of the wreck. The applicants had requested that the Trident be lifted so as to enable an inclining test for stability to be carried out, to preserve the evidence and to recover the remains of the crew, but the request was refused by the Department of Transport. It was planned to use a video camera mounted on a remotely operated vehicle to film inside the wreck, but problems with the equipment rendered this impossible, with the result that no information was obtained as to the settings of the various controls on board or the existence and position of any human remains. In addition to the underwater survey, an independent expert report on the wind and sea conditions operative at the site of the wreck on the day in question was prepared and the Maritime Research Institute in the Netherlands was asked to carry out physical scale model tank tests and computer simulations to attempt to determine what caused the ship to capsize.
13. A first draft of the JPE report was submitted on 14 May 2009 and a final draft was agreed by the JPE on 4 September 2009. The expert instructed by the applicants disagreed with some of the JPE’s findings and filed a separate report.
14. A copy of the NMI report (see paragraph 9 above), which had not previously been provided to the families of the Trident’s crew, was sent to the applicants’ solicitor on 13 May 2004. Further copies were provided to the JPE in 2006 and lodged by the Advocate General for Scotland as part of the court file in September 2009. Also in September 2009, the applicants lodged their written submission, in which they alleged that the Trident was built in breach of IMCO recommendations on stability and that an inclining test which would have discovered this was not undertaken (see paragraph 3 above). The applicants further alleged that the Trident’s designer, its part‑owner and the White Fish Authority were at fault.
15. The substantive court hearing commenced on 19 October 2009 before the Sheriff Principal of Grampian, Highland and Islands and two assessors with backgrounds in the fishing industry. The investigation sat for a total of 55 days over four sessions, with the final session taking place on 14 July 2010. Following the first session, the applicants changed their legal representatives. The NMI report came to the attention of the applicants themselves for the first time when one of them saw it in the internet file of material for the reopened formal investigation shortly before the start of the third session on 25 May 2010. On that date, the applicants challenged the view taken by their legal representatives that the NMI report was unimportant and did not need to be brought to the court’s attention. The applicants’ counsel then withdrew from the case and the applicants addressed the court directly. They expressed the view that the NMI report provided the complete answer as to why the Trident sank and that the reopened formal investigation had, in consequence, been a waste of time and money. The applicants then withdrew from the hearing. They subsequently lodged a letter with the court, urging the sheriff principal to take the NMI report into account and to find that the Trident had capsized because of a structural lack of stability.
16. In June 2010 the applicants lodged a freedom of information request with the Department of Trade and discovered that the first draft of the NMI report, together with a file of data used to prepare it, entitled “intact stability in relation to the Trident”, had been destroyed in February 2005 as part of a routine exercise to dispose of old documents.
17. The report of the rehearing of the formal investigation was published on 21 February 2011. The sheriff observed that the position of the wreck showed that the Trident was lost some eleven nautical miles south-east of the position estimated at the original formal investigation, and nearly an hour later. The prevailing sea and wind conditions were, therefore, different from what had previously been assumed; in particular, the evidence suggested that the waves were much higher. During the tank tests, the model designed to replicate the Trident capsized suddenly on a number of occasions when it encountered a deep trough followed by a large wave. Both the tank tests and the computer simulations indicated that the Trident had “specific seakeeping characteristics” that resulted in a measurable and significant probability of capsize in the prevailing weather conditions.
18. Based on the JPE report and the evidence taken during the hearing, the sheriff took the view that the Trident had complied with most, but not all, of the IMCO stability criteria (see paragraph 2 above). In any event, even if it had fully complied with these criteria, this would not have affected the outcome. In particular, in order to counteract the strong capsizing forces, a righting mechanism far greater than that required for compliance with the IMCO recommendations would have been needed. What had happened to the Trident on the day of her loss was not reasonably foreseeable to anyone in the light of the knowledge and understanding of the construction of seagoing vessels available at the time and still was not fully understood. The accident could not be attributed to the fault or omission of any person. The sheriff added that, while he could understand the disappointment of the family members who might have expected the JPE to identify precisely what it was about the Trident that caused her to capsize, he could also understand why the JPE did not embark on such a study, given that “even now the precise considerations that bear upon the dynamic stability of a vessel at sea appear not to be fully understood, and much high level research needs to be done before this gap in understanding can be filled”.
19. The sheriff observed that, in the course of preparing his written reasons, he had noticed that the figures used by the NMI report and the JPE respectively, in relation to the Trident’s metacentric height (the measurement of the initial static stability of a floating body), were significantly different and that he could not find any explanation for this. He then continued by expressing the view that NMI report was of no assistance in explaining the loss of the Trident, since the manner in which the waves were generated in the NMI tank test was crude and haphazard in comparison with the methodology used in the tests carried out under the oversight of the JPE and since the NMI’s conclusions were based on visual observations rather than precise measurements. Finally, the tests carried out for the rehearing of the formal investigation were designed to mirror exactly the conditions which obtained when the Trident was lost, including in particular the sea state, the vessel’s loading condition, speed and course relative to the direction of the waves. By contrast, in the NMI tests the vessel was seen capsizing several times when carrying out circling manoeuvres, which was not what the Trident was doing when it was lost.
20. The Merchant Shipping Act 1995 did not provide for any appeal against the sheriff’s findings.
5. Subsequent steps taken by the applicants
21. In 2011 the applicants approached a number of solicitors to ask whether they would be prepared to act for them on a no-win no-fee basis in a civil claim against the persons they considered at fault for the capsize of the Trident (see paragraph 14 above). None of the solicitors approached by the families were prepared to take on the case.
22. The applicants sought legal advice as regards grounds of challenge by way of judicial review in respect of the proceedings before the sheriff and his findings. In advice dated 28 February 2011, senior counsel concluded that it might be possible to found an argument based on the absence of material evidence before the sheriff and the absence of opportunity for the applicants properly to present their case as a result of failures by their legal team, but underlined that he needed more information about the underlying facts before he could give a more definite assessment. Additional advice was sought. The counsel instructed on this occasion expressed the view that it might be possible to challenge the rehearing of the formal investigation on the ground that the sheriff did not give adequate reasons for his conclusions. She identified two issues, the absence of an incline test on completion of the Trident and the fact that the NMI and JPE reports used different measurements of metacentric height to calculate the initial static stability of the Trident, as relevant considerations which the sheriff should have addressed. Counsel concluded, however, that “it may well be that the relevant court may not find these matters sufficiently persuasive to grant a review”.
23. In May 2011 the first applicant sought legal aid to bring an application for judicial review of the findings of the investigation. This application was refused on 25 July 2011 on the ground that counsel’s opinion did not adequately address the issue of prospects of success or the practical benefit to the applicant in seeking judicial review. The applicant appealed against this decision in September 2011. Her application was again refused on 22 December 2011, on the following grounds:
“The test of reasonableness is not met. The letter from the Office of the Solicitor to the Advocate General for Scotland dated 30 June 2011 advises that the total cost of the investigative process and the re-hearing of the formal investigation including the legal and technical costs of all the parties throughout the process of the joint panel of experts and during the course of the re-hearing of the formal investigation cost approximately £6m all funded by the Department of Transport. It is not known what the position is likely to be in relation to further costs in the event of the judicial review being successful and the matter being referred back for further investigation and reporting.
It is not known whether funding will be made available to the applicant. The legal costs of a judicial review are not insubstantial. £30,000 has been mentioned by the applicant’s solicitors. It is not satisfactorily demonstrated that a privately funded person of modest means would reasonably be advised to pursue this matter further.
It is suggested on review that in the event of eventual success the applicant will then have the opportunity of pursuing avenues of compensation for her losses. The applicant is 71 years of age. She was 34 years old when her father and husband died. There is no indication about the possible value of any claim she may have in the event that it is eventually determined that any individual or body is at fault. It is not possible to assess whether the potential costs involved in bringing any future claim to a conclusion from the present position can be justified.
It should be noted that even if the two principal grounds for judicial review are eventually addressed (the tribunal’s failure to address itself to the failure of the White Fish Authority to ensure that an incline test was conducted on the Trident and the failure of the formal investigation to consider the discrepancy in various figures relating to the stability of the Trident) there is nothing to demonstrate that had the Trident been constructed in a manner compliant with best practice at the time the accident would not have occurred.”
COMPLAINTS
24. Without referring to any particular Article of the Convention, the applicants complained that:
(1) the White Fish Authority did not ensure that an incline test was carried out on the Trident, which put the crew members’ lives at risk;
(2) the Government refused their requests to lift the wreck and instead ordered the survey team to cut it open in June 2006, thus exposing the remains of the crew to the elements;
(3) the rehearing of the formal investigation was flawed for the following reasons: (i) it was biased, in that it refused to consider that lack of stability was the cause of the accident; (ii) it was ineffective because it lacked information about the Trident’s stability, given in particular that the underwater survey did not produce any useful data, the only surviving former crew member of the Trident was not called to give evidence, documents related to the NMI report were shredded before the investigation could consider them and the investigation failed to take full account of the findings of the latter report; (iii) it did not provide the applicants with adequate access, because they were unrepresented for the final 15 days of the hearing; and (iv) it took nearly ten years to reach a conclusion; and finally, the applicants complained that:
(4) the first applicant was refused legal aid to judicially review the investigation and its 2011 report findings.
THE LAW
A. Alleged violation of the duty to protect life
25. The applicants’ first complaint concerned the failure of the White Fish Authority, in March or April 1973, to ensure that an incline test was carried out, to establish whether the Trident complied with IMCO recommendations on stability, before the trawler was handed over to its owners and put to sea. The Court, which is master of the characterisation to be given in law to the facts of the case (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998‑I), considers that this complaint falls to be examined under Article 2 § 1 of the Convention, which provides as follows:
“Everyone’s right to life shall be protected by law. ...”
26. In this connection, the Court reiterates that Article 2 does not solely concern deaths resulting from the use of force by agents of the State but also, in the above first sentence of its first paragraph, lays down a positive obligation on States to take appropriate steps to safeguard the lives of those within their jurisdiction. The Court has held that this obligation must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities which by their very nature are dangerous (see Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004‑XII). The Court has also held, in relation to the medical sphere, that in case of deaths of patients in care, whether in the public or private sector, the above obligation calls for an effective judicial system which can determine the cause of death and bring those responsible to account (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004‑VIII; and Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009). The same applies to deaths resulting from road traffic accidents (see Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007 and Anna Todorova v. Bulgaria, no. 23302/03, § 72, 24 May 2011). In the present case, since the applicants’ husbands and fathers lost their lives while trawling for fish, an inherently dangerous occupation, which is regulated by the State, the Court considers that Article 2 of the Convention is applicable.
27. The question arises whether the applicants have brought this complaint within the six‑month time-limit set out in Article 35 § 1 of the Convention. The purpose of the six‑month rule is to promote security of law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time (see, for example, Orić v. Croatia (dec.), no. 50203/12, § 27, 13 May 2014). Where no remedies are available or are judged to be ineffective, the six‑month time-limit in principle runs from the date of the act complained of (see Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002). However, special considerations may apply in exceptional cases where an applicant avails himself or herself of, or relies on, an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective; in such a case it is appropriate to take as the start of the six‑month period the date when he or she first became aware, or ought to have become aware, of those circumstances rendering the remedy ineffective (see Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).
28. In respect of the failure to protect life which the applicants claim occurred in the present case, the domestic legal system provided for a formal investigation, which was initially completed in September 1975 (see paragraph 7 above). Although the report of this original formal investigation found that the Trident was probably of inadequate stability and that this was a contributing cause of the shipwreck, it found that no fault on the part of the White Fish Authority, among others, had been established (see paragraph 7 above). In addition, it appears that one of the dependents of one of the deceased men applied for legal aid to bring civil proceedings in 1977 but was refused, although the documents relating to this claim have not been provided to the Court (see paragraph 8 above).
29. In these circumstances, where it was apparent to the applicants that the remedies available to them at national level could not bring redress in respect of their claim that the White Fish Authority negligently failed to protect the lives of their family members, they were required under Article 35 § 1 to lodge their application with the Court within six months of the final domestic decision. Without having sight of the documents relating to the attempted civil claim for damages, it is impossible to judge whether this could have been regarded as an effective remedy (and see, in respect of civil remedies for loss of life during the relevant period, Paul and Audrey Edwards, cited above, §§ 37-41 and 99). However, whether the time-limit commenced running with the publication of the sheriff’s report in September 1975 or the refusal of legal aid in 1977, the six‑month period clearly expired well before the applicants lodged the present application with the Court.
30. It follows that this part of the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
B. Alleged violation of the procedural aspect of Article 2
31. In addition, the applicants complain about various aspects of the reopened formal investigation. Again, the Court considers that these complaints fall to be examined under Article 2 § 1 of the Convention (set out in paragraph 24 above) and it refers to its above finding that Article 2 § 1 is applicable (see paragraph 26 above).
32. Where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 § 1 entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (see Öneryıldız, cited above, §§ 91-92). The form of investigation may vary according to the circumstances. In the sphere of negligence, a civil or disciplinary remedy may suffice (see Mastromatteo v. Italy [GC], no. 37703/97, § 90, ECHR 2002‑VIII). However, not only should that remedy exist in theory; it must operate effectively in practice, within a time‑span allowing the case to be examined without unnecessary delay (see Anna Todorova, cited above, § 73 and the cases cited therein). The object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied so as to make its safeguards practical and effective (see Öneryıldız, cited above, § 69).
33. Where an investigation into a death has long ended or an incident is far in the past, it is possible that new developments occur such that a fresh obligation to investigate arises, for example, newly-discovered evidence casting doubt on the results of an earlier investigation or trial or information purportedly casting new light on the circumstances of a death (see Emin and Others v. Cyprus (dec.), nos. 59623/08, 16206/09, 25180/09, 32744/09, 36499/09, 3706/09, 57250/09, § 27, 3 April 2012). The scope of the fresh obligation to investigate will vary according to the nature of the purported new evidence or information. It may be restricted to verifying the reliability of the new evidence. The authorities can legitimately take into account the prospects of launching a new prosecution at such a late stage. Due to the lapse of time, the level of urgency may have diminished; the immediacy of required investigative steps in the aftermath of an incident is likely to be absent. The standard of expedition in historical cases may be different from the standard applicable in recent incidents where time is often of the essence in preserving vital evidence at a scene and questioning witnesses when their memories are fresh and detailed (see Emin and Others, cited above, § 28).
34. In the present case, the State authorities sought to comply with their procedural obligation under Article 2 by setting up a formal investigation into the loss of the Trident. This investigation originally sat in 1975 and was reopened when the wreck of the Trident was found in 2001. The applicants’ complaints about the conduct of reopened formal investigation are set out in paragraph 24(3) above.
35. The majority of these complaints, in essence, relate to one issue: the alleged failure of the inquiry to give proper consideration to the question whether the Trident foundered because of lack of stability, which lack of stability, the applicants submit, could have been discovered and corrected if an incline test had been carried out shortly after the boat was built.
36. In connection with this complaint, the Court notes, first, that the rehearing of the formal investigation cost approximately GBP 6 million in public funds, a large portion of which budget was spent on the underwater survey of the Trident and the other research carried out under the supervision of the JPE. As the sheriff observed in his report, it must have been disappointing for the applicants that, despite this research, the JPE was unable to identify precisely what aspect of the Trident’s design and construction caused the capsize (see paragraph 18 above). However, the level of scientific understanding at the time of the report was not sufficient to resolve this question without the expenditure of a great deal more time and money on further high level research. In the light of the points discussed below, the Court does not consider it unreasonable of the authorities to have decided not to pursue this further research for the purposes of the formal investigation.
37. Secondly, the Court recalls that the inquiry found, on the basis of expert evidence, that the Trident was constructed to comply with most of the IMCO recommendations (see paragraph 18 above). Furthermore, both the tests carried out under the supervision of the JPE and the NMI report, on which the applicants rely, found that even if the Trident had been constructed in full compliance with IMCO recommendations, there would still have been a risk of capsize (see paragraph 9 above). While there might have been a problem with the Trident’s design which led to a lack of stability in the specific marine conditions which occurred on the day of the accident, there is no evidence to suggest that this would have been detectable at the time of construction in the light of the knowledge then available about stability at sea or through the application of the IMCO recommended test. The Court does not, therefore, consider that the applicants’ complaints about the lack of certain data concerning the Trident’s stability would have had any effect on the overall conclusion reached by the rehearing of the formal inquiry, which was that what happened to the trawler was not reasonably foreseeable at the relevant time and could not be attributed to the fault or omission of any person (see paragraph 17 above).
38. As regards the applicants’ complaint about their lack of legal representation, the Court notes that they were provided with legal representation at public expense (see paragraph 11 above). During this period, the applicants were able to make submissions through their representatives to the inquiry. They were also able to instruct an expert to represent them in the JPE. Subsequently, following a dispute with their legal representatives, the applicants chose to dismiss them (see paragraph 15 above). In the event, the applicants were without representation for only the final fifteen days of the reopened formal inquiry. Following the dismissal of their lawyers, they were permitted by the sheriff to make both oral and written representations, in which they urged the court to take into account the NMI report and to find that the Trident foundered because of a foreseeable lack of stability (see paragraph 15 above). In these circumstances, the Court does not find that the applicants were unduly prejudiced as a result of their lack of legal representation or that the dismissal of their lawyers impacted on the effectiveness of the investigation.
39. Finally, the applicants complained about the length of the reopened formal investigation. The wreck of the Trident was found in June 2001 and the investigation did not publish its conclusions until February 2011. The Court notes, however, that during this period the authorities were not inactive. Almost immediately after the discovery of the wreck, the Department of Transport commissioned a video survey by remotely controlled vehicle, which was completed in August 2001 (see paragraph 10 above). Some seven months later the Secretary of State ordered a rehearing of the formal inquiry. Later that year, a preliminary hearing was held and the JPE was constituted, following representations from the parties including the applicants (see paragraph 11 above). Under the supervision of the JPE, a number of expert reports were commissioned, including the underwater survey, which took place in June 2006 (see paragraph 12 above). The final draft of the JPE report was adopted in September 2009 (see paragraph 13 above). The court hearings commenced shortly afterwards, in October 2009, and were completed by mid-July 2010 (see paragraph 15 above), with the sheriff’s report published some seven months later.
40. In the Court’s view, in the circumstances of this case the above time-table was not unreasonable. As mentioned in paragraph 33 above, in view of the length of time that had elapsed since the deaths occurred, the need for expediency was less urgent. In addition, the technical difficulties involved in investigating an event that took place many years previously and where the principal physical evidence was on the sea bed were significant. Time was needed to constitute the panel of experts and for them to decide on and organise the various tests. Moreover, the Court recalls that, had evidence emerged at any time during the investigation that the negligence of any person had caused the Trident to founder, it would also have been open to the applicants to commence civil proceedings for damages, without waiting for the sheriff’s conclusions (see, mutatis mutandis, Rajkowska v. Poland (dec.), no. 37393/02, 27 November 2007).
41. In conclusion, the Court considers that the State authorities did all that was required of them to comply with the procedural obligation under Article 2 § 1 of the Convention. It follows that the applicants’ complaint under that provision is manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
C. Alleged breach of Article 6 § 1 of the Convention
42. The Court considers that the applicants’ complaint about the refusal to grant them legal aid to challenge by way of judicial review the findings of the reopened formal investigation should best be considered under Article 6 § 1 of the Convention, which provides:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
43. In connection with this complaint, the Court recalls that Article 6 § 1 includes a right to access to court (see Golder v. the United Kingdom (judgment of 21 February 1975, Series A no. 18, pp. 13-18, §§ 28-36). One aspect of the right of access to court is that a litigant is not denied the opportunity to present his or her case effectively before the court and that he or she is able to enjoy equality of arms with the opposing side (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32 and Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005‑II). Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, such as for example simplifying the applicable procedure (see Airey, cited above, § 26 and Steel and Morris, cited above, § 60). The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, on the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively (see Steel and Morris, cited above, § 61).
44. The right of access to court is not absolute. Where the individual’s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. If the restriction is compatible with these principles, no violation of Article 6 will arise (see Z and Others, cited above, § 93). The Court has considered regulations concerning minors and persons of unsound mind, statutory limitation periods and security for costs orders to constitute legitimate restrictions on access to court (see Golder, cited above, § 39; Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports 1996-IV, pp. 1502-03, §§ 51-52; Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 80-81, §§ 62-67). It has also held that it may be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (see Sinfield and Others v. the United Kingdom (dec.), no. 61332/12, §§ 40-46, 18 February 2014).
45. Turning to the facts of the present case, the Court recalls that legal aid was refused to the first applicant, who sought to bring an application for judicial review of the sheriff’s conduct of the inquiry. The Scottish Legal Aid Commission refused her application on the ground that the test of reasonableness was not met (see paragraph 23 above). In particular, given the potential costs involved and the uncertain value to the applicant even if she were to succeed in the judicial review, the Scottish Legal Aid Commission did not find it established that “a privately funded person of modest means would reasonably be advised to pursue this matter further”. In the circumstances of the present case, the Court does not consider it unreasonable for the State authorities to decide that, having already spent GBP 6 million on the rehearing of the formal investigation, no further public money should be spent on funding the litigation in question (see, mutatis mutandis, Sinfield and Others, cited above, § 44). As the representative of the Scottish Legal Aid Commission pointed out, even if the applicant were to succeed in the judicial review, this would take her no closer to her underlying aim, which was to establish that the loss of the Trident was caused by negligence.
46. It follows that the applicants’ complaint under Article 6 § 1 is manifestly ill-founded and therefore inadmissible, pursuant to Article 35 §§ 3 and 4 of the Convention.
D. Alleged violation of Article 8 of the Convention
47. The applicants’ remaining complaint concerns the decision by the Department of Transport to carry out an underwater survey of the Trident, which involved cutting into the wreck and exposing the remains of their loved ones to the open sea, rather than attempting to lift the wreck and recover the remains for burial. The Court considers that this complaint, insofar as it concerns the alleged lack of respect for the remains of the applicants’ family members (rather than the alleged inefficiency of the underwater survey) falls to be assessed under Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
48. The Court recalls that the decision to cut into the boat while leaving it on the seabed was taken prior to June 2006 (see paragraph 12 above). It does not appear that the applicants attempted to make use of domestic remedies, such as an application for judicial review to challenge this decision. Since the Human Rights Act 1998 was by then in force, if granted leave to apply for judicial review, the applicants could have relied directly on their Article 8 rights before the domestic courts. In any event, even assuming that for some reason no domestic remedy was available to them, this complaint is inadmissible under the six‑month rule set out in Article 35 § 1 of the Convention.
49. It follows that this part of the application has been submitted out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons the Court, unanimously,
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
APPENDIX
The following applicants are relatives of men who died on the Trident. They all live in Peterhead, Scotland, except the ninth applicant, who lives in Perth, and the fourteenth applicant, who lives in Shailer Park.
Jeannie RITCHIE, born in 1940, widow of Alexander Ritchie and daughter of George Nicol; George Buchan CORDINER, born in 1969, son of Robert Cordiner; Jessie Ann CORDINER, born in 1939, widow of Robert Cordiner; Peter Duthie CORDINER, born in 1961, son of Robert Cordiner; Robert Ritchie CORDINER, born in 1966, son of Robert Cordiner; Mary May NICOL, born in 1916, widow of George Nicol; Lorraine REID, born in 1955, daughter of Alexander Summers; Alexander RITCHIE, born in 1962, son of Alexander Richie; William RITCHIE, born in 1966, son of Alexander Richie;Keith SUMMERS, born in 1958, son of Alexander Summers;Irene SUMMERS HALL, born in 1935, widow of Alexander Summers;Andrew James TAIT, born in 1969, son of James Tait;James THAIN, born in 1964, son of Thomas Thain;Thomas THAIN, born in 1963, son of Thomas Thain;Donna THAIN LOW, born in 1968, daughter of Thomas Thain;Valerie THAIN ROUGH, born in 1944, widow of Thomas Thain.
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