PROCEDURE

The case originated in an application (no. 58559/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Irish nationals, Mrs Collette Hemsworth and Mr Michael Hemsworth (“the first and second applicants”), on 12 October 2009.

The applicants were represented by Mr J. McGettrick, a lawyer practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Yasmine Ahmed, of the Foreign and Commonwealth Office.

The applicants mainly complained under Article 2 that there had been an unlawful use of lethal force against the deceased, Mr John Hemsworth, and that the State had not fulfilled its procedural investigative obligations in that respect.

On 18 October 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

On 11 January 2012 the Irish Government declined to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1961 and 1933, respectively and live in Belfast. They are the wife and father, respectively, of Mr John Hemsworth.

A. The death of Mr John Hemsworth

The applicants maintained that, at 1 a.m. on 7 July 1997, John Hemsworth was walking home when he was passed by persons who were being chased by police officers from the Blues Operational Support Unit (“Blues OSU”) of the Royal Ulster Constabulary (“RUC”). They also contend that one of those officers hit John Hemsworth on the face with a truncheon and that he fell to the ground where he was kicked on the left side and hit on the back with a truncheon by the officers. He went home and informed his wife. He then went to hospital and it is alleged that RUC officers taunted him about the incident on the way there. He was treated for undisplaced fractures to both sides of his right jaw bone.

Following an article in a local newspaper about the incident, two witnesses (one an allegedly direct witness) came forward.

Having experienced headaches and tingling in one arm in late October/early November 1997, on 27 December 1997 John Hemsworth began vomiting and complained of severe headaches. He collapsed and was transferred to hospital where he died on 1 January 1998.

B. The RUC investigation and the inquest

On 3 January 1998 a pathologist found that John Hemsworth died from a cerebral infarction and it was not possible to correlate the recent thrombosis causing the fatal cerebral infraction with a facial injury in 1997.

On 8 January 1998 the RUC began an investigation supervised by the Independent Commission for Police Complaints (“ICPC”).

On 30 April 1998 the Coroner registered the death as he considered, given the pathologist’s report, that an inquest was not necessary.

In his report of 4 August 1999, an expert in forensic medicine instructed by the first applicant found that it was “highly likely” that the assault was the sole underlying cause of death. Further to her request, on 2 February 2000 the Attorney General ordered the Coroner to hold an inquest.

Subsequently, a forensic expert briefed by the Coroner also concluded that, despite the delay between the fatal cerebral infarct and the injury of July 1997, it was likely that they were “linked in terms of causation”. The applicants claimed that the original pathologist later expressed his agreement with these later two expert opinions.

The RUC then asked the applicants to provide them with all relevant information and evidence and for their statements. The applicants forwarded the deceased’s medical records and gave statements to the RUC. The two witnesses who had volunteered were interviewed as well as other persons living in the area. Numerous police and military personnel on duty in the area, as well as those deployed to the street where John Hemsworth was allegedly assaulted, were interviewed. The RUC Report on the Investigation dated 3 May 2001 accepted that John Hemsworth had been injured on 7 July 1997 but not that RUC officers had assaulted him or that those injuries had led to his death. Certain parts of this report are redacted.

On 7 June 2001 the Coroner opened a pre-inquest hearing, in 16 cases including into John Hemsworth’s death, to hear submissions on the implications of the judgments of this Court of 4 May 2001 in certain cases concerning deaths in Northern Ireland (Hugh Jordan v. the United Kingdom, no. 24746/94, (extracts); McKerr v. the United Kingdom, no. 28883/95, both in ECHR 2001-III; Shanaghan v. the United Kingdom, no. 37715/97; and Kelly and Others v. the United Kingdom, no. 30054/96). The first applicant was legally represented, as she was for all domestic proceedings. The hearing was adjourned given the possibility of the referral of those cases to the Grand Chamber of this Court.

In September 2001 the Coroner adjourned the pre-inquest hearing, although he indicated that John Hemsworth’s inquest would take place after Pearse Jordan’s inquest (to whom the Hugh Jordan judgment related).

On 1 September 2000 the first applicant applied for legal aid for the inquest under the Lord Chancellor’s Extra-Statutory Scheme (established in July 2000). On 5 June 2001 she began a judicial review action: that evening the Lord Chancellor granted her limited funding. The action continued in order to challenge that limitation on funding. On 7 January 2003 the High Court found against her as did the Court of Appeal (9 March 2005). With information gleaned from that action, in January 2002 the first applicant applied for legal aid under the Green Form Scheme. In February 2002 limited legal aid was proposed but in a manner she considered inconsistent with the State’s approach in the first judicial review action. On 21 May 2003 the Legal Aid Department accepted that there had been some confusion as to the sources of legal aid for inquests and it issued a notice of clarification. The first applicant again issued judicial review proceedings. On 26 April 2004 the High Court found in her favour.

In November 2002 the first applicant wrote to the Coroner seeking progress in the inquest. The Coroner responded that he awaited the judgments of the House of Lords in the cases of Amin (Regina v. Secretary of State for the Home Department ex parte Amin, [2003] UKHL 51) and Middleton (Regina v. Her Majesty’s Coroner for the Western District of Somerset and other ex parte Middleton, [2004] UKHL 10). The first applicant requested the Coroner to progress certain pre-inquest matters. At a hearing in February 2003, some disclosure was made to the first applicant.

The applicants claimed that, during that hearing, the Coroner advised that there was no evidence that the deceased had been struck by RUC officers. The first applicant applied for the Coroner to recuse himself. At a further pre-inquest hearing on 2 September 2003, the Coroner accepted that he had to investigate the allegations that RUC officers were responsible for the death so the first applicant did not pursue the matter further.

On 20 December 2004, at a further pre-inquest hearing, the first applicant provided the Coroner with a list of witnesses they required including the police officers who were allegedly likely to have been responsible for and/or to have witnessed the assault.

A pre-inquest hearing was convened in March 2008 when the Coroner ruled on the witnesses he proposed to call, none of whom were RUC officers. The first applicant applied to the Coroner to recuse himself. The Coroner refused but indicated that he would receive further representations as to why RUC witnesses were required. The first applicant made such submissions. By letter of 14 November 2008 the Coroner refused to call any RUC witnesses or to recuse himself. The first applicant began a judicial review action. On 9 March 2009 the High Court found in her favour: a new Coroner was to be appointed and the RUC witnesses sought were to be called to give evidence.

Another pre-inquest hearing took place on 16 September 2009: it was agreed to call the additional witnesses requested by the first applicant and the Crown Solicitor’s Office confirmed that full disclosure of all relevant materials had been made to the Coroner and to the next-of-kin, subject to a few isolated matters which were being dealt with.

The inquest began on 21 September 2009. It did not sit each day and certain witnesses were unavailable through ill-health. On 8 October 2009 the Coroner discharged the jury due to evidence which had emerged. The Coroner had decided to take a statement from a possible eye-witness to the assault. On receipt of the statement, it emerged that Officer M, of the Police Service Northern Ireland (the “PSNI” replaced the RUC in 2001), had taken the statement on the Coroner’s behalf. However, Officer M had been a member of the RUC at the time of the alleged assault. He was also the Deputy Investigation Officer and, in addition, he was due to be called as a witness. The first applicant therefore requested and, in October 2009, the Coroner obtained and disclosed Officer M’s journal entries on the police investigation. It emerged therefrom that Officer M had interviewed a soldier (Private G) in 2000. Private G had told Officer M that, on the day when John Hemsworth was allegedly assaulted, Private G had seen an officer in the RUC Blues OSU assaulting a civilian with a baton in an area close to the location of Mr Hemsworth’s alleged assault. Private G had also told Officer M that a senior military officer, as well as a senior RUC officer from the RUC Blues OSU, had told him that he should not report this incident to his superiors. Given the time it would take to recall witnesses and to call Private G, the Coroner considered it preferable to discharge the jury and conduct the inquest afresh.

The Coroner was advised by the Crown Solicitor’s Office that all documentation in relation to Private G was destroyed in August 2009. The Coroner ordered the PSNI to prepare a paginated and indexed bundle of all material held by them in relation to the death of John Hemsworth, including any documentation held in relation to Private G. Officers unconnected with the original investigation should conduct this disclosure exercise. The PSNI confirmed that the Legacy Support Unit within the PSNI would deal with disclosure and that any officers allegedly involved in the assault or the subsequent investigation would have no further involvement.

On 29 November 2009 a further pre-inquest hearing was held, when the PSNI confirmed that, by 4 December 2009, the Coroner would be provided with the bundle of documents and the first applicant with a redacted version of same. While no documents in relation to Private G’s allegations had been retained, Private G had been traced and his statement would be taken. The inquest was scheduled to begin on 21 January 2010.

The inquest resumed on 25 January 2010. On the second and third days of the inquest, two jurors advised the Coroner of connections to the police. The Coroner acceded to the first applicant’s request to discharge the jury on the basis that the jury may have been already tainted.

On 22 April 2010 the first applicant obtained an expert medical report which found that marks on the deceased’s face and back (apparent from photographs taken after the alleged assault) were consistent with the allegations of assault by police baton. The first applicant and the Coroner further corresponded about progressing the inquest. In June 2010 the Crown Solicitor’s Office stated that it would brief an expert on the photographs and the marks. It did so in October 2010. In January 2011 the Crown Solicitor’s Office’s expert reported but did not address the question whether police batons could have made the marks on the deceased’s body. In May 2011 a supplementary expert report was submitted.

The inquest began on 16 May 2011. Evidence was heard until 24 May 2011. Closing speeches were made on 26 May 2011. The first applicant was too ill to attend. Given the intervening judgment of the Supreme Court of 18 May 2011 (McCaughey and Another, Re Application for Judicial Review ([2011] UKSC 20, paragraph 43 below), the Coroner agreed that, so far as possible, the inquest would be conducted in such a manner as to comply with Article 2 of the Convention.

On 27 May 2011 the inquest jury rendered its verdict. It found the medical causes of death to be cerebral infarction and thrombosis of the right internal carotid artery. The jury accepted that John Hemsworth was injured on 7 July 1997; that his injuries included fractures to both the right and left hand sides of his jaw bone, tramline bruising to the left jaw, neck and lower left side of his back as well as bruising to the right jaw; that those injuries “were most probably the underlying cause of his death”; that the injuries were “consistent with those caused by someone being struck by a baton, according to several expert witnesses”; that the photographs showed “distinctive and characteristic bruising associated with baton injuries”; that “the factures and bruising injuries were caused by being struck by a baton and kicked”; and that, since the RUC Blues OSU were the only police on the relevant street on the relevant night, it was “highly probable” that one or more of those officers was responsible for the injuries to Mr Hemsworth.

The Coroner announced that he would refer the matter to the Director of Public Prosecutions (“DPP”) and ensured the production, from public funds, of a transcript of the inquest proceedings. Having waited until the new DPP was established in his post, on 25 January 2012 he formally referred the case to the DPP pursuant to section 35(3) of the Criminal Justice (Northern Ireland) Act 2002, indicating that the verdict “should be sufficient to indicate the contentious background to the death and its wider significance”. On 3 February 2012 the DPP’s office acknowledged the referral. Further to the applicants’ queries, on 23 April 2012 the Coroner confirmed the referral and on 14 May 2012 that the DPP had acknowledged the referral. In their observations of 3 July 2012 the Government submitted that the matter was the subject of “active consideration” by the DPP.

C. Civil proceedings

On 5 September 2001 the applicant initiated civil proceedings against the PSNI and on 10 August 2011 a Notice of Intention to Proceed was served.

D. The Police Ombudsman

Further to the first applicant’s request, the Police Ombudsman reviewed the police file. In his report of 1 May 2007 he considered that the medical experts did not agree on the extension of a causal link between the July 1997 injuries and the subsequent death so that there was no evidence that any RUC officer was responsible for John Hemsworth’s death and he could identify nothing further that he could do to take the matter forward.