PROCEDURE

The case originated in an application (no. 37715/97) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Irish national, Mrs Mary Theresa Shanaghan (“the applicant”), on 3 October 1996.

The applicant, who had been granted legal aid, was represented by Mr P. Mageean and Mr D. Korff, lawyers practising in the United Kingdom. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

The applicant alleged that her son Patrick Shanaghan was killed by an unknown gunman in circumstances disclosing collusion by members of the security forces and that there was an inadequate investigation into his death. She invoked Articles 2, 13 and 14 of the Convention.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

Having consulted the parties, the President of the Chamber decided that in the interests of the proper administration of justice, the proceedings in the present case should be conducted simultaneously with those in the cases of Hugh Jordan v. the United Kingdom, no. 24746/94, McKerr v. the United Kingdom, no. 28883/95 and Kelly and Others v. the United Kingdom, no. 30054/96 (see judgments of the same date).

Third-party comments were received from the Northern Ireland Human Rights Commission on 23 March 2000, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 61 § 3).

A hearing took place in public in the Human Rights Building on 4 April 2000. There appeared before the Court: (a) for the Government Mr C. Whomersley, Agent, Mr R. Weatherup, QC, Mr P. Sales, Mr J. Eadie, Mr N. Lavender, Counsel, Mr O. Paulin, Ms S. Mcclelland, Ms K. Pearson, Mr D. Mcilroy, Ms S. Broderick, Ms L. Mcalpine, Ms J. Donnelly, Mr T. Taylor, Advisers; (b) for the applicants Mr D. Korff, Ms F. Doherty, Counsel, Mr P. Mageean, Solicitor. The Court heard addresses by Mr Weatherup and Mr Korff.

By a decision of 4 April 2000, the Chamber declared the application admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

The facts of the case, in particular concerning the circumstances surrounding the death of Patrick Shanaghan on 12 August 1991, are in dispute between the parties.

A. Events prior to 12 August 1991

Patrick Shanaghan was a thirty-year-old Catholic and active member of Sinn Fein when he was killed.

The Royal Ulster Constabulary (the RUC) suspected him of being an IRA member and that he was involved in terrorism. Between 15 April 1985 and 19 May 1991 he was arrested and detained pursuant to investigations into acts of terrorism in Northern Ireland. Six of the ten arrests resulted in detention for four or more days. He was never charged with any crime.

Patrick Shanaghan gave several written statements to his solicitors alleging physical assaults by RUC officers while in custody, including being punched in the back, punched under the chin with a clenched fist, stabbed in the throat with extended fingers, slapped in the face, having his arms wrenched back and forth repeatedly, being forced to keep a crouched position for hours, having his head struck against a wall, and being hit and kicked in the testicles. The applicant alleged that on several occasions RUC detectives threatened to kill her son during interrogations, for example, by telling him that “Loyalists in Castlederg know you now and they'll get you”.

During his detention in Castlereagh from 9 to 15 April 1986, it was recorded that Patrick Shanaghan complained to a doctor that he had been ill-treated – this referred to the pulling of his hair and the forcing back of his fingers. The doctor reported this to the custody sergeant, who invited Patrick Shanaghan to make a written statement. Patrick Shanaghan declined to reply. He also declined to reply when the custody sergeant asked him if he would be willing to attend a police disciplinary hearing.

On 4 April 1989, Patrick Shanaghan instituted proceedings against the Chief Constable of the RUC for alleged assault, battery, trespass to the person, unlawful arrest and unlawful imprisonment in respect of his detention from 9 to 15 April 1986. These were discontinued by him on 3 September 1990.

The applicant also claimed that there was an attempt on Patrick Shanaghan's life, on 17 February 1989, but that he managed to escape. The RUC were called but no charges were brought against a suspect for the murder attempt. When Patrick Shanaghan was arrested a year later, in February 1990, he publicly stated that RUC officers repeatedly mentioned this murder attempt during interrogation and one officer claimed, “We won't miss next time”.

The RUC warned Patrick Shanaghan twice that he was under potential threat from loyalist paramilitary groups. On 10 December 1990, a RUC detective informed him that security force documentation containing information about him, including a photographic montage, had accidentally fallen out of the back of an army vehicle. He was advised to take measures for his personal safety as there was a risk that the material had come into the hands of loyalist paramilitaries. A letter dated 11 January 1991 was sent to the RUC by Patrick Shanaghan's solicitors who requested, as a matter of urgency in order to assess the risk to his life, information relating to the documentation, including the type of information lost, dates when the information was first recorded, the exact date and under what circumstances it went missing, copies of photographs and addresses included in the files, and information in relation to the social movement and employment of persons involved in handling the files. On 29 July 1994, over three and a half years later, the RUC responded to this letter by stating that the police investigation was concluded and that the document had been accidentally lost by the Army. On 27 April 1991, Sergeant Norden of the RUC called at Mr Shanaghan's home and informed him that he had received information to suggest that he was being targeted by loyalists.

The Government gave further details about the loss of the photographs. They stated that on 10 December 1990 during the journey of an army patrol vehicle from Rockwood Base to Hump Vehicle Checkpoint near Strabane in County Tyrone, the rear doors of the vehicle fell open and a helmet, armoured vest and combat suit belonging to one of the drivers fell from the vehicle. The jacket of the combat suit contained three terrorist recognition photographic montages comprising a total of 38 photographs, including some of Patrick Shanaghan. Upon arrival, it was discovered that the said equipment was missing and a search carried out of the route, which resulted in the recovery of the helmet. The officer responsible for the missing equipment was cautioned and interviewed by the Special Investigation Branch about the loss of the photographic montages. He was subsequently reported and disciplinary proceedings instituted against him. The officer attended a disciplinary interview with his Brigade Commander. No formal disciplinary sanction was recorded as imposed, although the Government stated that it was possible that he received a formal rebuke which would not have been recorded. The RUC informed Patrick Shanaghan promptly of the loss of the photographs. There was no evidence who, if anyone, recovered the photographs or that they played any later role in events.

Patrick Shanaghan was stopped and questioned by RUC and UDR officers on a daily basis. The Shanaghan family home, which the applicant shared with her son, was searched sixteen times between 1985 and 1991. No illegal material was ever found. According to the applicant, sometimes the RUC would not even enter certain rooms indicating that the search was not a concerted effort to locate and seize illegal material but was carried out solely to harass the family.

B. The killing of Patrick Shanaghan

At about 8.30 a.m. on 12 August 1991, Patrick Shanaghan was driving his van to his job when he was shot dead by a masked gunman. About twenty shots had been fired into the van as it passed down the Learmore Road in the direction of Castlederg. The UFF (Ulster Freedom Fighters – a loyalist organisation) later claimed responsibility for the murder in the local press.

RUC officers arrived at the scene shortly after the shooting was reported. A scene of crimes officer attended the scene and recovered bullet casings and glass samples. The scene was photographed, including the tyre impressions. These items were analysed by a member of the Northern Ireland Forensic Science Laboratory. The applicant alleged that the behaviour of the police at the scene was not consonant with any concern for her son's life or proper police procedures, claiming that no ambulance was called to the scene and that the police prevented a priest approaching to give the last rites. The Government stated that no ambulance was called as it was apparent that an ambulance could not have assisted Patrick Shanaghan. When the priest arrived, he was initially asked to go to Incident Control Point before approaching the car, to enable the officers to make the necessary arrangements for the preservation of the evidence at the scene.

At 2.30 p.m. on the same day, a post mortem examination disclosed that Patrick Shanaghan had died from a bullet wound to the chest.

The police attempted to identify potential eye-witnesses by speaking to all those present at the scene, conducting house to house enquiries, setting up vehicle check points and making press appeals for witnesses to come forward. They also interviewed the police officers who had been attending a road traffic accident to which personnel had been diverted shortly before the shooting occurred. The Government stated that there had been nothing suspicious in the conduct of the police in this respect. Three cars had been tasked to attend the road traffic accident at the village of Killen, it being normal practice for more than one vehicle to respond due to the risk of attacks on the security forces by the Provisional IRA.

Shortly after the shooting, the RUC discovered a car which they believed had been used by the people involved in the shooting. However, a forensic and fingerprint examination disclosed no evidence to connect it with any person suspected of the murder. Enquiries showed that the car had been recently bought for cash by unknown persons from a private vendor.

As later revealed in the inquest, the investigating police officer believed that he knew the identity of the persons involved in the killing but had no evidence to prove it. Several suspects had been arrested and interviewed but no evidence of admission had been obtained from them.

On 26 January 1995, the applicant accepted the sum of 25,520 pounds sterling from the Criminal Injuries Compensation Scheme in respect of the death of her son.

C. The inquest

An inquest into the killing was opened on 26 March 1996, over four and a half years after the murder. The RUC file had been transmitted to the Coroner on 14 January 1994. The delay in their inquiries resulted, according to the Government, from the extent of other criminal activities requiring police attention in the Castlederg area at that time. The inquest was further delayed to February 1996 pending the completion of further inquiries required by the Coroner.

No explanation was given to the Shanaghan family to account for the delay. During this period, the family had not known whether any murder investigation had been conducted by the police and were not provided with any indication as to the nature of the RUC's findings, if any, as to how the applicant's son had died.

The inquest was heard over six days, between 26 March and 20 June 1996. It was presided over by the Coroner who sat with a jury and was assisted by a lawyer. The RUC were represented by counsel and a solicitor.

During the inquest, the solicitor acting for the family of Patrick Shanaghan sought to introduce evidence in support of allegations that the RUC had prior knowledge that he was to be murdered, that the RUC had made threats against him and that the police investigation had been inadequate. This consisted of evidence from a forensic science consultant who criticised the RUC for not taking a plaster-cast of car tyre impressions found at the scene of the crime, and the oral testimony of D.C. who claimed to have been told by Patrick Shanaghan of threats to his life made by RUC officers and who had heard such threats made by officers when he himself was in custody. When the Coroner accepted that the evidence should be admitted, the RUC Chief Constable applied for judicial review of those decisions. On 18 June 1996, the High Court quashed the Coroner's decision, holding that: “... it is now well-settled in the jurisprudence on this topic that a Coroner's function is not, and one may say emphatically not, to conduct a wide-ranging inquiry into the broad circumstances in which a deceased has met his death. It is now clearly established by the decisions to which I have referred that the word “how” should receive the connotation “by what means” and it seems to me ... that it cannot be the case that the evidence in relation to the calibre of the police investigation - the quality of the police investigation – touches upon the means by which Mr. Shanaghan was killed. Rather it is directly relevant to the possible criticism of the standard of the police investigation and that ... goes well beyond the scope of the inquiry of the Coroner. By the same token I consider that the evidence ... from Mr [D.C.] ... is not germane to the question which the Coroner and the jury must decide and that is by what means the deceased met his death. Evidence has already been given without apparent challenge that the deceased was the target of loyalist terrorists before he was murdered. That evidence has not been disputed and is no way controversial and in those circumstances it appears to me that the only issue which Mr [D.C.]'s evidence could shed light upon is whether these threats were uttered by police officers. That, for the reasons I have already referred to, is not a matter for the Coroner's inquest to enquire into ...”

The Coroner refused to admit in evidence statements made by Patrick Shanaghan to his solicitors. The applicant stated that her original statement was edited by the RUC to exclude references to police collusion when it appeared in a Coroner's deposition.

On 20 June 1996, the Coroner's Inquest issued the verdict that Patrick Shanaghan had died on 12 August 1991 on Learmore Road in Castlederg from a bullet wound to the chest.

D. Police complaints procedure

On 14 July 1996, the applicant made a complaint about the conduct of the RUC at the scene of the shooting in denying Dr Stewart access to the body and in failing to call an ambulance. This complaint was investigated by an assistant chief constable, under the supervision of the Independent Commission for Police Complaints (the ICPC), as a result of which the Inspector concerned was given advice which was recorded in the Divisional Discipline Book.

A Superintendent of the Complaints and Discipline Section of the RUC made attempts to investigate the allegations made by D.C. that, during an interview with police, RUC officers had made threats against Patrick Shanaghan (see paragraph 31 above). By letter of 2 October 1996, D.C.'s solicitors replied that their client would not make a statement concerning Patrick Shanaghan as none had been sought at the time of the incident. Attempts were made to take statements from three other witnesses mentioned at the inquest, only one of whom agreed. The RUC officers who had interviewed D.C. on 14 and 15 May 1991 were themselves interviewed.

On 26 June 1997, a copy of the unofficial inquiry report was sent by the applicant's daughter to the Secretary of State for Northern Ireland (see below, concerning the unofficial inquiry). She complained of the failure to make a plaster cast of the tyre tracks at the scene and that Constable D. had said that he had been sent to the scene of the shooting at 8 a.m. before it had taken place. As a result, the RUC conducted further enquiries under the supervision of the ICPC and the RUC subsequently reported to the Director of Public Prosecutions (the DPP).

On 16 July 1997, the ICPC wrote to the applicant's daughter and son-in-law informing them that the ICPC was satisfied by the police investigation which had taken place.

On 30 November 1998, the ICPC wrote to the applicant's daughter to inform her that Constable D. would be spoken to about the error which he had made as to the time at which he was detailed to the scene but that no other disciplinary proceedings would be taken in respect of the matters complained of on 26 June 1997. They stated that they were satisfied with the action taken.

In January 1999, having considered the results of the RUC's further enquiries in the light of the unofficial enquiry, the DPP decided that there should be no prosecution in relation to the shooting.

E. Unofficial inquiry

A community inquiry into the circumstances surrounding the murder was organised by family and friends after the conclusion of the inquest in the hope that the whole truth about the murder could be revealed. The inquiry, conducted by the Castlederg-Aghyaran Justice Group and chaired by a retired United States Judge, Andrew Somers, heard thirteen witnesses over the period from 17 to 19 September 1996. The witnesses included family, local residents and friends of the deceased. Evidence was given alleging that police officers had frequently stopped Patrick Shanaghan in the street and issued threats, that the police warned people to keep away from him or they would end up being shot, that police officers made comments to persons in custody before the incident that Patrick Shanaghan would be targeted and, after the incident, claimed that they had had him killed. Two witnesses claimed that they had seen Patrick Shanaghan still moving after the shooting had occurred. The Judge concluded that the applicant had been murdered by the British Government and, more specifically, with the collusion of the RUC.

F. Civil proceedings

On 22 July 1994, the applicant issued a writ against the Chief Constable of the RUC and, by amendment of 15 September 1994, against the Ministry of Defence also. The writ was served on 17 July 1995. In the proceedings, the applicant claimed damages for loss and damage sustained by her and the estate of her son by reason, inter alia, of negligence, breach of confidence and misfeasance in public office relating to the storing, handling and use of information. On 19 July 1995, the defendants gave notice of intention to defend the proceedings. No further steps have been taken.