PROCEDURE

The case originated in an application (no. 24746/94) 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 and British national, Mr Hugh Jordan (“the applicant”), on 13 May 1994.

The applicant, who had been granted legal aid, was represented by Mr K. Winters and Mr S. Treacy, lawyers practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

The applicant alleged that his son Pearse Jordan had been unjustifiably shot and killed by a police officer and that there had been no effective investigation into, or redress for, his death. He invoked Articles 2, 6, 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 McKerr v. the United Kingdom, no. 28883/95, Kelly and Others v. the United Kingdom, no. 30054/96 and Shanaghan v. the United Kingdom, no. 37715/97 (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 applicant Mr S. Treacy, QC, Ms K. Quinliven, Counsel, Ms P. Coyle, Solicitor. The Court heard addresses by Mr Weatherup and Mr Treacy.

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

I. THE CIRCUMSTANCES OF THE CASE

The facts of the case, in particular concerning what happened when Pearse Jordan was shot on 25 November 1992, are in dispute between the parties.

A. Events relating to the death of Pearse Jordan

On 25 November 1992, the applicant’s son, Pearse Jordan, aged 22, was shot and killed in Belfast by an officer of the Royal Ulster Constabulary (the RUC), later identified as Sergeant A.

The official statement issued by the RUC to the media indicated that an RUC unit had pursued a car on the Falls Road and brought it to a halt. On stopping the car, the officers had fired several shots at the driver, fatally wounding him a short distance from where his car had been abandoned. No guns, ammunition, explosives, masks or gloves had been found in the car and the driver, Pearse Jordan, had been unarmed.

The post mortem report found two entry wounds in Pearse Jordan’s back and one in the back of the left arm, and noted a bruise on the face and shin. It concluded that he had been struck by three bullets which had come from behind and to the left. There was nothing to indicate the range.

The shooting was witnessed by four civilians, who on 26 November 1992 made statements to the Committee for the Administration of Justice (CAJ), an independent non-governmental human rights organisation based in Belfast. The four witnesses gave the following account of the shooting, which is not accepted by the Government.

The four civilians were walking together along the Falls Road and passed Andersontown RUC station at 5 p.m. approximately. They noticed two unmarked police cars parked with their headlights dimmed, each containing three RUC officers: one car was red and the second dark blue/green. As they proceeded along the road, they heard a crash behind them and turned to see on the opposite side of the road the red police car pulling alongside a car (Pearse Jordan’s) and ramming it up onto the footpath. The red police car came to a halt in front of the car while the dark blue/green police car pulled up behind hitting it in the rear. The four civilians stopped and had an unobstructed view across the road. Pearse Jordan emerged from the immobilised car, and appeared shaken. He staggered across the road towards the four men followed by four police officers. As Pearse Jordan reached the white line in the centre of the road, an officer about 12 feet away fired a number of shots. The civilians heard no warning shout or challenge given by any of the officers and saw nothing in Pearse Jordan’s hands or anything threatening in his actions. Some of the shots struck Pearse Jordan. He staggered a little further then turned to face the police who, when they caught up with him, verbally abused him and pushed his face into the ground where he was kicked and searched. The police carried out a search of the car. The four witnesses followed the ambulance which took Pearse Jordan to hospital where they stated that they were subjected to hostile and threatening remarks by members of the security forces.

According to the applicant, prior to the release of the official RUC statement (see paragraph 13 above), there were a number of unofficial reports widely circulated in the media to the effect that gloves, masks, guns and bombs had been found in the car, and one report to the effect that Pearse Jordan was a former Republican prisoner who had been charged in 1991 with possession of explosives. This information was not correct. Pearse Jordan did however receive an IRA funeral and, in the Republican News, he was described as a Volunteer of the Belfast Brigade of the IRA and it was said that he had died on active service.

An official RUC statement stated that a deputy superintendent of the RUC from outside Belfast would investigate the shooting. In a later statement, it was announced that the Independent Commission for Police Complaints (the ICPC) would supervise the RUC investigation.

On 26 November 1992, at 10.55 p.m., a detective chief inspector of the RUC criminal investigation department interviewed Sergeant A, in the presence of his solicitor and a representative of the ICPC. Sergeant A, member of an HMSU unit, stated as follows. He had been at a briefing at 11 a.m. the day before concerning reports of a planned distribution of kit and munitions, including weapons, explosives and mortars, by the Provisional IRA in West Belfast. A surveillance operation was to be mounted and he was in charge of the teams on the ground which were going to intervene if possible to intercept the munitions. He was carrying a Smith and Wesson 59 pistol and a MP5 Heckler and Koch. At about 3.20-3.30 p.m., following reports of a car acting suspiciously at White Rock leisure centre, he and his teams left Woodbourne police station to wait at Andersontown police station. They heard reports there of a build up of activity at the back of two houses in Arizona street, which were under surveillance. The red car from the leisure centre arrived in Arizona street. Sergeant A thought that this was possibly the re-supply of terrorist equipment taking place. He was told by radio to gather his people together – car crews with call signs 8, 9, 3 and 12. When the red Orion left Arizona street, he and his crews left the police station but were called back almost immediately to allow the red Orion to make its run. A red Cavalier left Arizona street and they were told to allow that to run. News arrived that the red Orion had come back to Arizona street. Sergeant A was told on the radio that the next time the red Orion came out they were to intercept it. He split his crews in two, his own team (call signs 8 and 12) to approach from the city side and the crews with call signs 3 and 9 to approach from the country side. When the red Orion came past the two police cars, Sergeant A saw that there was one driver. They pulled out behind it. His driver flashed his lights at it. They switched on their police klaxon but had no blue flashing light on the car and none of them were wearing their police caps. Sergeant A’s car drew level with the Orion and he signalled for it to pull over. The Orion slowed falling behind and then shot past on the passenger side, accelerating down the Falls Road in the direction of the city. Sergeant A told his driver to pursue him and force him off the road. The car possibly reached the speed of 60, maybe 70 miles per hour at the fastest. They were in a built up area, in traffic so it was difficult to judge. Their klaxon was going throughout. They drew parallel with the red Orion and nudged it once. The impact was hard enough to force the Orion partly up on the pavement and stop it. Sergeant A’s own car stopped partly on the pavement in front of the Orion. The lock of his door had broken on the impact. He burst out of the door onto the pavement moving towards the Orion. He saw the driver running across the road from left to right at an angle away from him. He was looking over his right shoulder in Sergeant A’s direction as he ran. Sergeant A said that he called out “Police. Halt.” or “Halt. Police.” The driver of the Orion turned around towards him. He could not see the man’s hands which were below his waist. His vision was either obscured by the roof of the police car in front of him or the arrival of the other black car (crew 12) on the scene. As he could not see the man’s hands, he thought that his own life or the life of his own driver might be at risk. He feared the man was armed as he had spun round so quickly. He fired a short burst from his MP5 at the trunk of the man. When he made the split second decision to fire, the man was facing him but he could not say whether he had turned or moved in some other way. He was aware of other police officers shouting. He ran towards the driver who ran towards the footpath on the far side of the road. Constable F was shouting at him to get down on his knees. The driver fell flat, toppling over. It was realised at that stage that he was seriously injured. Sergeant A quickly searched the car, while other security force personnel administered first aid to the driver. Either base, or he himself, suggested that the police officers move to Arizona street. The military took over the first aid. He had directed most of the police officers to leave the scene as soon as they had arrived, including crew 12 in their car. He did not know that car 12 had come into contact with the Orion or the deceased. He arrived back at the station at about 5.30 to 6.00 p.m. There was a 20-30 minute debriefing in which he participated. He also discussed the matter casually with the others who were there. He was instructed to hand in his weapon at about that time.

On 30 March 1993, a detective inspector carried out a second interview of Sergeant A, in the presence of his solicitor. Further questions were put about his position and actions at the time of the shooting. He recalled that he had had a clear view of the deceased from the waist up. When the deceased turned to face him, he did not make any movements towards him. His arms remained down though. When asked to explain precisely why he had considered that his life was in danger, given that he could not confirm that the deceased was armed, Sergeant A replied that it had been a prolonged operation lasting several hours involving serious terrorist activity. The red Orion had reacted in a very aggressive manner in driving at excessive speed on a busy road. When the Orion was stopped, the driver ran away and when he was ordered to stop, he turned towards the Sergeant in what the Sergeant interpreted as an aggressive manner. His arms were down and his hands out of sight. In that short space of time, he formed the opinion that the deceased was a threat to his life. The man’s actions had not been of someone about to surrender. He was certain that there were no viable alternatives to discharging his own weapon.

Forensic examinations of the cars involved in the incident were carried out. Interviews were conducted with the other police officers and army personnel involved in the incident. According to the statements of police officers D, E and F in the car call sign 12, they had been pursuing the red Orion car close behind the red police Sierra in which Sergeant A was driving. When the Orion stopped, their car pulled up behind. As they were stopping, the driver was running from the car and either he ran into them or their car struck him, clipping him on the right thigh. The driver span round towards call sign 8. At that point, there was a short burst of gunfire. Their car had also at some point made contact with the red Orion in the rear. Only officer D heard shouting coming from the call sign 8 direction before the shooting. Shortly after moving their car to facilitate the flow of traffic, they had been directed to Arizona street. In his statement of 6 December 1992, Sergeant H, from the car call sign 11, stated that on arrival at the scene he had instructed car 12 to be moved to facilitate the movement of a bus which had stopped very close to the injured man. He was not aware that car 12 might have struck the red Orion car or the deceased. The car was only moved back slightly and he was not involved in directing its complete removal from the scene. Inspector M gave a statement on 7 December 1992 that, on being satisfied that the injured man was receiving first aid and that the red Orion had been secured, he gave directions for all the HMSU police teams to go to Arizona street for searches. Some sort of device has been located there.

During the investigation, appeals were made by the police in newspapers and broadcast media for potential eyewitnesses to come forward. A number of civilians made statements to the police and subsequently gave evidence at the inquest. In May 1993, the RUC concluded its inquiry. Its report on the investigation was submitted to the Director of Public Prosecutions (the DPP) on 25 May 1993.

On 3 June 1993, the ICPC wrote to the applicant’s family expressing the view that the RUC report of 25 May 1993 concerning the criminal investigation into the shooting was satisfactory. On 15 June 1993, the RUC wrote to the applicant advising him that the papers had been sent to the DPP. The applicant and his family were not however provided with any indication as to the nature of the RUC’s findings.

On 16 November 1993, the DPP’s department issued to the Chief Constable of the RUC a direction of “no prosecution” in respect of the fatal shooting of Pearse Jordan. It had been concluded that the evidence was insufficient to warrant the prosecution of any person.

On 22 November 1993, having considered a submission by the CAJ, the DPP notified the CAJ that the direction of “no prosecution” should stand.

On 11 February 1994, the RUC Complaints and Discipline Department wrote to the applicant to inform him that the report on the shooting had been sent to the ICPC.

On 31 August 1994, the ICPC wrote to the applicant to inform him that after careful scrutiny of all the details it was of the opinion that the evidence was insufficient to warrant the preferment of disciplinary charges against the police officers concerned.

B. The inquest

On 29 November 1993, the RUC notified the Coroner that the DPP had directed “no prosecution”. Following that decision, the Coroner decided to hold an inquest.

On 4 November 1994, the Coroner received the case papers from the RUC.

On or about 13 November 1994, the Coroner wrote to interested parties informing them that the inquest would begin on 4 January 1995.

Prior to the commencement of the inquest, the Secretary of State for Defence issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest on grounds of national security, and made an application that the identities of certain military witnesses be withheld and that they should give their evidence from behind a screen.

On 20 December 1994, the Coroner held a preliminary hearing at which he decided to: (a) protect certain categories of information from disclosure on the grounds of national security; (b) protect the identity of three military witnesses, Soldiers V, W and X by withholding their names and screening them from all except the Coroner, the jury and the legal representatives of the interested parties; and (c) protect the identity of certain RUC officers, including Sergeant A (the officer who fired the shots which killed Pearse Jordan) by withholding their names.

On 2 January 1995, the Secretary of State for Northern Ireland issued a certificate in which he identified information whose disclosure at the inquest he believed would be contrary to the public interest as compromising the integrity of RUC intelligence operations.

On 4 January 1995, the Coroner’s inquest commenced. The applicant and his family were represented by a solicitor and counsel. The RUC were represented. The Coroner sat for three and a half days, hearing evidence from 19 witnesses, including the applicant, 8 civilians, Soldiers V, W and X, 7 police officers and a pathologist. These witnesses were subject to cross-examination. Sergeant A had informed the Coroner that he would not appear.

On or about 8 January 1995, the CAJ provided the Coroner with a statement which they had received from another civilian witness, a driver of a black taxi who had been at the scene.

On 10 January 1995, the Coroner rejected the request by the applicant’s counsel to withdraw the protection of the identities of the RUC witnesses.

The proceedings were adjourned on 16 January 1995, at the request of Pearse Jordan’s family, to enable the DPP, in the light of new evidence from the taxi driver, to reconsider the decision whether or not to bring a prosecution. The Coroner wrote to the DPP informing him that new evidence had come to light which should be considered.

On 10 February 1995, the DPP decided that the evidence remained insufficient to warrant the prosecution of any person in relation to Pearse Jordan’s death. He requested that any further evidence adduced at the inquest relevant to his functions be reported to him.

On 14 February 1995, the applicant’s legal representatives were informed by the DPP that his decision not to bring a prosecution still stood.

On 10 March 1995, the applicant’s legal representatives made an application for the Coroner to discharge himself from the Inquest on the grounds that he was not conducting the inquest fairly. The Coroner refused the application.

On 11 April 1995, the Coroner wrote to the interested parties informing them that the inquest would resume on 12 June 1995.

On 26 May 1995, the applicant’s legal representatives commenced judicial review proceedings seeking declarations that certain rulings given by the Coroner in the course of the inquest were wrong in law. Leave was granted on 2 June 1995. The applicant sought orders of certiorari to quash inter alia (a) the Coroner’s refusal to give the next of kin access to the statements of the witnesses before they gave evidence at the inquest and (b) the decision of the Coroner to grant anonymity to RUC witnesses. Legal aid was granted to the applicant for this purpose. The Coroner adjourned the inquest pending these proceedings.

Leave was granted to bring judicial review proceedings against the Coroner on 2 June 1995.

The judicial review application was heard on 9 and 10 November 1995. By judgment of 11 December 1995, Lord Justice Carswell refused the applicant’s claims. In doing so he had regard to the inquisitorial nature of inquest proceedings. He referred to the remarks of Griffiths J in Ex parte Peach: “A coroner’s inquest is an inquisitorial procedure with a very limited objective indeed. The objective is set out in rule 26 of the Coroners Rules 1953. It is limited to ascertaining the following matters: who the deceased was; how, when and where the deceased came by his death. There is a further specific limitation provided by the Coroners (Amendment) Rules 1977. These provide by rule 7 that no verdict shall be framed in such a way as to appear to determine any question of criminal liability on the part of a named person or of civil liability. It is quite true that the coroner may allow interested parties to examine a witness called by the coroner. But that must be for the purpose of assisting in establishing the matters which the inquest is directed to determine. It is not intended by rule 16 to widen the coroner’s inquest into adversarial fields of conflict.”

Lord Justice Carswell also referred to the statutory background governing the procedure at inquest: Section 31(1) of the Coroners Act (Northern Ireland) 1959 providing that the jury shall give their verdict in the form prescribed by rules, “setting forth, so far as such particulars have been proved to them, who the deceased person was and how, when and where he came to his death.” and Rule 16 of the Coroners (Practice and Procedure) Rules 1963 providing: “neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability ...”

On 8 January 1996, the applicant appealed against the decision of Lord Justice Carswell. The appeal was dismissed by the Court of Appeal of Northern Ireland on 28 June 1996. The applicant’s application for leave to appeal to the House of Lords was refused on 4 October 1996. The House of Lords also refused leave on 20 March 1997.

The inquest was due to recommence on 1 December 1997. However, it was adjourned on 19 November 1997 by the Coroner, after consultation with the parties, pending the outcome of a judicial review application in the High Court concerning the availability of legal aid for legal representation for the family of the deceased at inquests.

On 16 March 1999, final judgment was given in the case of Sharon Lavery v. the Secretary of State and the Legal Aid Department, in which a challenge concerning the unavailability of legal aid for inquests was dismissed.

On 1 July 1999, the Coroner informed the interested parties that he intended to resume the inquest on 1 November 1999.

On 13 October 1999, the Coroner adjourned the inquest pending the applicant’s application for the disclosure of documents by the Chief Constable of the RUC in the wake of the Home Office Circular issued on 28 April 1999 on deaths in police custody which recommended, inter alia, that material supplied by the police to the Coroner should be made available to the families of deceased persons (see paragraphs 73 and 74 below).

On 2 February 2000, the applicant was informed that the Chief Constable would provide copies of the statements of the witnesses who were to appear at the inquest and copies of any statements which the Coroner proposed to read out.

On 3 March 2000, the applicant was granted leave to bring judicial review proceedings against the Chief Constable, challenging his decision not to provide further documents to the applicant.

When the inquest resumed, the Coroner proposed to call, in addition to the witnesses who gave evidence in January 1995, 12 police officers and Soldier Y involved in the anti-terrorist operation in which Pearse Jordan died, forensic experts and three police officers involved in the RUC investigation into the shooting.

On a date unspecified between 4 April and 2 October 2000, the applicant was provided with the witness statements of persons whom the Coroner has decided should be called to give evidence at the inquest.

C. Concerning the civil proceedings

The applicant was granted legal aid to pursue a civil action for compensation in the High Court. On 7 December 1992, the applicant instituted civil proceedings, alleging death by wrongful act.

On 5 October 1995, the applicant served a statement of claim in the civil proceedings. On 24 October 1995 the Ministry of Defence served their defence, together with a request for further and better particulars of the statement of claim. The applicant did not reply to this request until a date unspecified subsequent to 27 August 1998.

On 8 October 1999, the Crown Solicitor wrote to the applicant seeking consent to a remittal of the civil action to trial.

The applicant stated that the case is currently at the discovery stage but that this cannot be concluded until the inquest is terminated.