ITEMID: 001-59451
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF McKERR v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Violation of Art. 2;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza;Simon Brown
TEXT: 11. On 11 November 1982 Gervaise McKerr was driving a green Ford Escort, registration no. UPF 775. There were two passengers in the car: Eugen Toman and Sean Burns. None of the men was armed. At Tullygally Road, East Lurgan, at least 109 rounds were fired into the car by police officers of a specially trained mobile support unit of the Royal Ulster Constabulary (RUC). All three men were killed.
12. The facts relating to the death of Gervaise McKerr remain in dispute despite over ten years of inquest proceedings, three criminal prosecutions and other related legal proceedings.
13. On 11 November 1982 steps were taken by Chief Inspector Whirter to preserve the scene of the shooting. A doctor attended the scene and conducted a preliminary examination of the bodies. On 12 November 1982 a forensic expert from the Northern Ireland Forensic Science Laboratory conducted a detailed examination of the scene and Professor Marshall carried out post-mortem examinations of the bodies. Photographs were taken of the scene and the bodies, and maps drawn up. On the same day the scene of crimes officer took possession of the police officers’ rifles, a submachine gun and pistol. About eighty-four of the cartridges fired at the scene were recovered (leaving twenty-five unaccounted for). The police made house-to-house enquiries in the vicinity, in conjunction with an appeal in the press for any witnesses to come forward, and a meeting was organised with a local councillor.
14. As part of the investigation, on 15 November 1982, Detective Chief Inspector Scott interviewed three RUC officers from the five-member mobile support unit. Sergeant M., Constable B. and Constable R. made written statements. These statements described the incident but did not mention that the deceased were the subject of surveillance by Special Branch officers and were believed to have set out to commit a murder. The officers had received instructions from the deputy head of Special Branch not to refer to the fact that they were Special Branch officers or that they had intelligence made available to them in advance of the incident. It was later alleged that this was in order to prevent the availability of advance intelligence becoming public knowledge and hampering efforts to fight terrorism.
15. On 18 January 1983 the three officers, M., B. and R., were interviewed again in the light of the available forensic evidence. Written records were made of these interviews.
16. The results of the RUC investigation were sent to the Director of Public Prosecutions (DPP) to consider whether any prosecution should be brought. The DPP requested that further inquiries be made. On 19 and 20 July 1983 the three officers were interviewed, and on this occasion they stated that they had been briefed that the three deceased were the subject of surveillance and were believed to have set out to commit a murder.
17. Shortly afterwards, the DPP decided that charges should be brought against these three officers (“the three defendants”). The indictment was issued on 8 March 1984 and, as amended on 29 May 1984, charged B. with the murder of Eugene Toman, and M. and R. with aiding, abetting, counselling and procuring B. to commit that offence.
18. The trial of the three defendants took place in Belfast between 29 May and 5 June 1984 before Lord Justice Gibson, sitting without a jury. The prosecution case involved twenty-seven witnesses appearing at the trial to give evidence, while statements from a further eleven witnesses were read out. Over seventy-five exhibits were submitted in evidence.
19. At the close of the prosecution case Lord Justice Gibson found that the evidence against the three defendants did not establish their guilt and, concluding that there was no case to answer, acquitted them. In his judgment giving his reasons for this conclusion, he stated:
“The accused were tasked to arrest Toman and Burns on suspicion of having committed terrorist acts, including murder, and to prevent them carrying out a further murder which the police authorities had reason to believe was about to be attempted.
Each of the accused was so advised by his superiors and was further informed that the suspects would probably be armed and that they were both dedicated and dangerous terrorists who had let it be known that they would not be arrested alive. If they were arrested therefore it would be known to all concerned that firearms would probably have to be used to effect their arrest.
The degree of danger of the operation which was anticipated may be judged by the fact that the three accused were issued with one submachine gun, two Ruger rifles, three semi-automatic pistols and a total of almost 200 rounds of ammunition.
The deceased were under surveillance and according to information received they set off in a car driven by McKerr with the object of carrying out the proposed murder. A road block was then set up by the police in order to stop and arrest them.
They broke through the road block at high speed endangering the life of a police officer in so doing. The accused who were in a car nearby immediately gave chase. Shots were discharged after the escaping car.
At this point I had to be careful in assessing the evidence to leave out of account any self serving parts of statements made by the accused.
It was a dark wet November night and the forensic evidence satisfies me that bullets striking the rear window and other metal parts at the rear of the car would in such conditions emit flashes which could readily be mistaken for the muzzle flashes of guns fired from the back of the car especially after the rear window was broken as it was.
... I have no doubt that it was a reasonable conclusion that the accused were being fired at. In fact none of the persons escaping did have any firearms but each of the accused opened fire from their car as they travelled at high speed along the Tullygally East Road ...
I have no doubt that at this stage each of the accused was acting lawfully in shooting at the three deceased as being the only practicable means of effecting their arrest and if need be of killing them in order to stop their escape and prevent the perpetration of murder ...
Quite apart from any question of self defence which may have been raised as a result of the apparent gun flashes from the car, the car, driven by McKerr, was driven at high speed. It failed to negotiate a turn to the right to a slip road and it came to a rest a matter of 40 to 50 feet up the slip road just off the left hand verge and on the sloping ground giving a drop of some four feet. The car in which the three accused were pulled up on the other side of the road. All jumped out.
Without reference to the statements of the accused and relying exclusively on other Crown evidence it is clear that the passenger door of the car ... opened. The front passenger was Toman and in the rear seat was Burns.
The evidence of [the forensic expert], which I accept, was that the ... experiments which he carried out [showed that] the opening of the passenger door from inside produced two distinct metallic sounds, the first like the slide of a gun hitting the back blade; the second like the slide hitting the front blade. These sounds were heard by him distinctly at a distance of twenty feet.
The Crown case is that after the door was opened ... some or all of the accused struck Toman in the back as he stood outside the car killing him instantly. ... the passenger side of the car would have been in shadow. In my view it matters not whether the accused on hearing the noise of the door being opened concluded that this was what was happening or whether they thought that one of the occupants of the car was preparing to open fire on them.
In either event the act of shooting was not murder. In any event the noise established that one or more of the occupants was alighting. If the noise was taken to be indicating that the front passenger was preparing to get out of the car that could only be interpreted as an attempt to get down the hill to escape into the country beyond or being an attempt to take up a position behind the car with the intention of opening fire. If on the other hand the noise was taken to be the operation of a gun slide it was unmistakable that a gunman proposed to open fire and immediate retaliatory action was required.
As seen and understood by the accused the car contained three men, at least two murderous gunmen who had not merely given no indication of submission but seemed prepared to shoot it out or at least escape in the dark. In those circumstances to open fire was to my mind the most obvious and only means of self defence and the only step consistent with their duty. Apart from running away it was the only reasonable course open to them.
It was in my view the use by them of such as was reasonable in the circumstances as appreciated by them, including their understanding of the mortal danger in which they were to effect arrests even though it may be by killing and to prevent the commission of the contemplated murder.
Their use of gunfire into the car was therefore plainly lawful within the terms of Section 3 of the Criminal Law Act (Northern Ireland) 1967 as well as being the commensurate force for their own self-defence. ...
There was no time to my mind to weigh up the possibilities. At all costs and at all possible speed the danger had to be eliminated otherwise the consequences might have been fatal to themselves.
As I have read the papers and as I understand the evidence there never was the slimmest chance that the Crown could have hoped to secure a conviction. ...”
20. The judge concluded with these comments:
“I speak not of the inevitable concerns and worries of the accused or the additional danger that they are now likely to be in because their identities and appearances have been publicly exposed by this trial. I am thinking of the very widespread effects among other members of the police and indeed of the armed forces generally when a policeman or a soldier is ordered to arrest a dangerous criminal and ... to bring him back. How is he to consider his conduct?
May it not be that some may now ask ‘Am I to risk my life carrying out this order knowing that if I survive my reward will be a further risk of life imprisonment as a murderer’. One would hope that they will accept the first risk as part of their duty but should they not also be entitled to expect that if they do so they will have the protection of the law unless it should appear with total blindness they may have overstepped the bounds of the criminal law.
As far as the three deceased men who unhappily forfeited their lives are concerned they died not because they were victims of murder but because knowing that two of them were wanted by the police on a charge of multiple murder and many other crimes they decided not to stop when confronted by the police and to risk all in an attempt to escape. It was a gamble which failed.
There is just one final observation which I would like to make. ... I want to make clear that having heard the entire Crown case exposed in open court I regard each of the accused as absolutely blameless in this matter.
I consider that in fairness to them that finding also ought to be recorded together with my commendation for their courage and determination in bringing the three deceased men to justice, in this case to the final court of justice.”
Shortly after giving judgment, Lord Justice Gibson made a statement in open court:
“Having regard to the widespread publicity which parts of my judgment have received and the observations which have been made upon it in the press and elsewhere, I have considered it desirable to clarify my views on two matters.
First, I would point out that my observations related to the particular circumstances of that occasion and ought not to be read out of context. I would wish most emphatically to repudiate any idea that I would approve or that the law would countenance what has been described as a shoot-to-kill policy on the part of the police.
Like every other member of the public they have no right, in any circumstances, to use more force than appears to be reasonably necessary having regard to all the circumstances understood by them.
... I understand that in some quarters certain further words of mine have been thought to mean that I was contemplating that the police force might be regarded as entitled to mete out summary justice by means of the bullet.
I do not believe that on any fair analysis my words were capable of that interpretation. Indeed, nothing was further from my mind, nor would I or any other judge contemplate for a second that such a view was tenable.”
21. In November and December 1982 there had been two further fatal shooting incidents involving the RUC in Armagh – the killing of Michael Tighe and serious wounding of Martin McAuley on 24 November 1982, and the killing of Seamus Grew and Roddy Carroll on 12 December 1982. None of the deceased was armed.
22. On 11 April 1984 the DPP exercised his statutory powers under Article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 to request the Chief Constable of the RUC to conduct further investigations into the three cases. The Government stated that he did so as it appeared that, in certain statements of evidence, material and important facts had been omitted and matters which were untrue and misleading in material and important respects had been included. He also requested that he be provided with full information about the circumstances in which false and misleading evidence had been provided by any officer of the RUC and an investigation into whether there was evidence to suggest that any person was guilty of an offence of perverting the course of justice or any other offence in connection with the investigation of the three shooting incidents.
23. On 24 May 1984 John Stalker, then Deputy Chief Constable of the Greater Manchester Police, was appointed by the Chief Constable of the RUC to carry out the investigation, which was to investigate the circumstances in which certain members of the RUC had provided false or misleading evidence or purported evidence, and to investigate the conduct of members of the RUC in connection with the inquiries into the incidents.
24. In October 1984, three months after the defendants were acquitted, they were interviewed by the Stalker team, which included Detective Chief Superintendent Thorburn. Written records were kept of these statements. B. also made a written statement. According to his book John Stalker (see paragraph 31 below), on 26 June 1985, Mr Stalker wrote to the Chief Constable of the RUC, Sir John Hermon, informing him of fresh evidence pointing to offences of unlawful killings by RUC officers. On 18 September 1985 Mr Stalker sent his Interim Report to the RUC [according to the RUC report on the Stalker book (see paragraph 33) this report consisted of 3,609 pages, in twenty separate volumes, including one album of maps and photographs] and, on 15 February 1986, Sir John Hermon sent the report to the DPP for Northern Ireland. On 4 March 1986 the DPP instructed Sir John Hermon to release Special Branch files to Mr Stalker, which documents had been withheld on grounds of national security. The documents were handed over to Mr Stalker on or about 30 April 1986.
25. On 29 May 1986 Mr Stalker was removed from the inquiry and replaced by Colin Sampson, Chief Constable of West Yorkshire Police, who was also asked to investigate allegations of impropriety against Mr Stalker concerning matters unrelated to the present case.
26. On 6 August 1986 Mr Sampson completed his investigation into Mr Stalker and, on 22 August 1986, Mr Stalker was reinstated by the Police Committee. He did not, however, return to the inquiry.
27. On 26 November 1986 Mr Stalker’s deputy on the inquiry, John Thorburn, left the police and, on 13 March 1987, Mr Stalker himself also left.
28. Mr Sampson delivered his report to Sir John Hermon and the DPP in three sections, on 22 October 1986, 23 March and 10 April 1997.
29. On 25 January 1988 Sir Patrick Mayhew, the then Attorney-General, made a statement in Parliament in which he said, inter alia:
“In regard to the shooting incidents ... the [DPP] had considered all the facts and information ascertained and reported by Mr Stalker and Mr Sampson, and he has re-examined the original RUC investigation files. He has concluded that the evidence does not warrant any further prosecution in respect of the shootings which occurred on 11 November 1982 and 12 December 1982 and which have already been the subject of prosecutions. ...
The [DPP] has however concluded that there is evidence of the commission of offences of perverting or attempting or conspiring to pervert the course of justice or of obstructing a constable in the execution of his duty, and that this evidence is sufficient to require consideration of whether prosecutions are required in the public interest and he has consulted me accordingly.
I have therefore taken steps to acquaint myself with all the relevant circumstances, including matters concerning the public interest and, in particular, considerations of national security that might properly affect the decision whether or not to institute proceedings.
I have informed the Director fully with regard to my consultations as to the public interest, and in the light of all the facts and information brought to his notice, the [DPP] has concluded, with my full agreement, that it would not be proper to institute any criminal proceedings. He has given directions accordingly.”
30. Eight officers were, according to the Government, the subject of disciplinary proceedings, and received admonitions and advice as to their future conduct.
31. In the book John Stalker, published by Mr Stalker in 1988, the following descriptions of his investigation into the three shooting incidents appeared:
“The Stalker inquiry discovered that the three victims of the shooting had been under surveillance for many hours by the police who planned to intercept them at a place different from where the killings occurred. No serious attempt to attract the attention of the driver was made, and no policeman was struck by the car. Immediately after the incident the police officers drove from the scene with their weapons and returned to their base for a debriefing by senior Special Branch Officers. Officers from the Criminal Investigation Department (CID) were denied access for many days to the police officers involved and to their car, clothes and weapons for forensic examination. On the night of the killings, CID officers were given incorrect information about where the shootings began and part of the forensic examination was conducted in the wrong place. Many cartridge cases of rounds fired were never found.”
“We believed ... that at least one officer had been in an entirely different position from that which he had claimed to be in when some fatal shots were fired. I also established that the police pursuit took place in a different manner from that described. But most damning of all, almost 21 months after the shooting we found fragments of the bullet that undoubtedly killed the driver still embedded in the car. That crucial evidence had lain undiscovered by the RUC and Forensic Science service ... My conclusion in relation to the missing cartridge cases was that as many as twenty were deliberately removed from the scene. I could only presume that this was in order to mislead the forensic scientists and to hide the true nature and extent of the shooting.”
“I had to regard the investigation of the matter as slipshod and in some aspects woefully inadequate. I was left with two alternative conclusions, either that some RUC detectives were amateur and inefficient at even the most basic of murder investigation routines; or that they had been deliberately inept.”
“Even though six deaths had occurred over a five week period ... and involved in each case officers from the same specialist squad, no co-ordinated investigation had ever been attempted. It seemed that the investigating officers had never spoken to each other. Worse still, despite the obvious political and public implications, no senior officer had seen fit to draw the reports together.”
“We had expected a particularly high level of enquiry in view of the nature of the deaths, but this was shamefully absent. The files were little more than a collection of statements, apparently prepared for a coroner’s enquiry. They bore no resemblance to my idea of a murder prosecution file. Even on the most cursory of readings I could see clearly why the prosecutions had failed.”
32. According to The Times of 9 February 1988, Mr Stalker also stated:
“I never did find evidence of a shoot-to-kill policy as such. There was no written instruction, nothing pinned up on a noticeboard. But there was a clear understanding on the part of the men whose job it was to pull the trigger that that was what was expected of them.”
33. In 1990 the RUC issued a response to the book by Mr Stalker. It stated in its introduction that the book contained many inaccuracies and distortions and gave a misleading impression. Their document aimed to highlight a selected number of misrepresentations. It was stated, in contradiction to Mr Stalker’s assertions, that it was wrong to allege that the three investigations were carried out under different detectives as the same detective superintendent was in charge of two of the investigations; that the investigation files were presented to the DPP in the format approved by him; that it was already established in a police statement of 13 November 1982 that no police officer had been struck by the car driven by Gervaise McKerr; that it had been advisable, for the safety of the three officers, that they leave the scene immediately; that their weapons had been seized without delay by the scene of crimes officers; that no incorrect information was given to the investigating officers concerning where the shooting occurred, although uniformed officers had mistakenly positioned the tape on the junction and it was repositioned accurately shortly afterwards; it was accepted that all the cartridges were not recovered but due to the torrential rain at the time some could have been washed down the drains; the area had nonetheless been swept over for two days with metal detectors.
Criticisms were also made that Mr Stalker had gone outside his remit to reinvestigate the shooting incidents as well as a terrorist incident on 27 October 1982 in which three police officers had been killed and that his report, when submitted, lacked the clarity and precision normally associated with criminal investigations.
34. The Government have also submitted that on 23 June 1992 Mr Thorburn, on the occasion of his withdrawal of a libel action against the RUC Chief Constable, made a statement in which he took the opportunity to submit publicly that he was satisfied that the RUC had not pursued a shoot- to-kill policy in 1982 and that the RUC Chief Constable had not condoned or authorised any deliberate or reckless killings by his officers. Other members of the Stalker/Sampson inquiry team also stated in June 1990 that “the Greater Manchester officers wish to stress that the Stalker/Sampson Enquiry found no evidence of a ‘Shoot to Kill policy’ ”.
35. An inquest into the deaths was opened by the Armagh coroner, Mr Curran, on 4 June 1984 at the conclusion of the criminal trial. On or about 22 August 1984 Mr Curran resigned. The applicant alleged that this was due to irregularities in the RUC files concerning the deaths. The inquest was due to be heard in September 1984 before Mr Elliott but was adjourned on the application of Mrs Creaney’s legal representatives. The coroner then waited until after the conclusion of the Stalker/Sampson investigation before scheduling the inquest to reopen on 14 November 1988.
36. The coroner was provided with all the witness statements, forensic evidence, maps and photographs which were obtained as part of the RUC investigation and the Stalker/Sampson investigations. Parts of some of the witness statements were deleted in the public interest for reasons of national security.
37. On 27 October 1988 the coroner held a preliminary meeting, attended by the legal representatives of the interested parties, including the relatives of the deceased, at which he stated that he intended to admit in evidence the written statement of Sergeant M. and officers B. and R.
38. On 9 November 1988 Tom King, the then Secretary of State for Northern Ireland, issued a Public Interest Immunity Certificate (“PII Certificate”) which, the applicant alleged, prevented the disclosure of a substantial amount of information that would otherwise have been available to the inquest due to open five days later. The certificate covered any information or documents which might reveal, inter alia:
– details of RUC counter-terrorist capabilities, including methods of operation, specialist training and equipment;
– details of the intelligence which gave rise to the belief that there was a conspiracy to murder an off-duty member of the security forces and the methods by which such intelligence was gleaned; and
– certain details of surveillance mounted by the RUC as part of the operation during which McKerr, Toman and Burns were killed.
39. On 14 November 1988 the inquest opened. The coroner admitted unsworn evidence by the three officers M., B. and R., who had declined to appear to give evidence at the inquest.
40. On 17 November 1988 an adjournment was granted at the request of Mrs Creaney’s solicitor who took proceedings for judicial review to challenge the admission of the unsworn statements. The application was refused on 22 November 1988 by Mr Justice Carswell. On appeal, the Court of Appeal held on 20 December 1988 that the Coroners’ Practice and Procedure Rules (which conferred on the coroner the discretion to admit the statements) were ultra vires since M., B. and R. were compellable witnesses. Leave to appeal to the House of Lords was granted to the Crown on 19 April 1989. On 8 March 1990 the House of Lords overturned the judgment, holding that the Coroners’ Rules of Practice and Procedure were not ultra vires and that these officers could not be compelled to attend the inquest.
41. The inquest proceedings, due to recommence on 23 April 1990, were adjourned further while Mrs Creaney commenced a second set of judicial review proceedings challenging the admission of the statements of the three officers. Mr Justice Carswell on 11 May 1990 and the Court of Appeal on 27 June 1990 rejected the application as raising no new issues.
42. On 20 July 1990 Mrs Creaney’s legal representatives wrote to the coroner requesting that the inquest not be resumed pending an appeal in judicial review proceedings relating to an inquest into the deaths of three other persons (the Devine case, where relatives of the deceased had challenged the power of the coroner to admit written statements from the soldiers who had shot the deceased). The request was granted. Judgment was given by the Court of Appeal in that case on 6 December 1990 and by the House of Lords on 6 February 1992, upholding the power of coroners to admit written statements.
43. On 5 May 1992 a second inquest resumed under Coroner John Leckey. The coroner stated in his address to the jury:
“The purpose of an Inquest is the investigation in public of all the facts and circumstances surrounding an unnatural death. It follows, therefore, that an inquest is usually unnecessary when those facts have already been investigated and made public in a criminal court on a prosecution for homicide. You may recall that in 1984 three police officers were prosecuted for the murder of one of the deceased, Eugene Toman, but were acquitted. In the course of their trial there was a very full examination of the facts surrounding the three deaths and had there not been another factor to consider, I would have decided that an Inquest was unnecessary. That factor, which makes the investigation of these deaths wholly exceptional, is a subsequent investigation carried out by the Greater Manchester Police: the so-called Stalker Inquiry. The statements they took have been made available to me and the public has a proper interest in knowing whether any further evidence came to light. For that reason and that reason alone, I am holding Inquests.”
44. The inquest continued until 29 May 1992, in public, before a jury, and involved the hearing of about nineteen witnesses over thirteen days. Mrs Creaney was represented by a barrister, who cross-examined the witnesses and made extensive legal submissions. The RUC were also represented.
45. On 28 May 1992 a witness, officer D., said that he had had recourse to the statement he had made to the RUC on 13 November 1982, prior to giving evidence at the inquest. Counsel for Mrs Creaney asked to see this statement but the coroner refused his request, as the witness did not have it about his person and it was the property of the RUC. On 29 May 1992, at the applicant’s request, the inquest was adjourned. The same day, Mrs Creaney’s solicitor sought leave in the High Court for judicial review of, inter alia, the coroner’s decision refusing access to witness D.’s statement. Leave for judicial review was initially refused on 2 June 1992 but finally granted by the Court of Appeal on 8 June 1992.
46. On 21 December 1992 Judge Nicholson ruled that Mrs Creaney had no right to see the statement and also declined to rule that she could have a list of the jurors, although he strongly recommended that the names of the jurors be read out in open court on resumption of the inquest. On 28 May 1993 the Court of Appeal overturned the former decision, holding that counsel was entitled to see the witness statement of 13 November 1982 and that the coroner could order production of the statement from the RUC, and, if it was not produced, could issue a subpoena.
47. On 2 November 1992 the coroner wrote to Detective Chief Superintendent McIvor of the RUC, recalling that, prior to the adjournment of the inquest, he had expressed his view that four Greater Manchester Police witnesses (including John Thorburn, Mr Stalker’s deputy on the inquiry) should be granted access to documents and papers relating to their investigation as members of the Greater Manchester Police Inquiry. Chief Superintendent McIvor replied that none of the police officers mentioned had requested access and that he therefore presumed they had been able to brief themselves on papers in their own possession.
48. On 16 November 1992 Mr Thorburn wrote to the Chief Constable of the Greater Manchester Police requesting access to the statement file and forensic evidence relating to the killing at Tullygally Road on 11 November 1982. By letter of 25 January 1993, the coroner was informed that the Chief Constable of the RUC had advised the Greater Manchester Police that Mr Thorburn should not be allowed access to the documents requested. He was also informed that the documents were part of the inquiry and were therefore the property of the RUC, to which all subsequent requests should therefore be addressed.
49. Following a meeting on 9 September 1993 with the representatives of the interested parties, including Mrs Creaney, the coroner served a subpoena on the Chief Constable of the RUC requiring him to attend with reports on the Stalker/Sampson investigations.
50. On 21 December 1993 the legal adviser of the RUC wrote to the coroner stating that he had now been informed by the Greater Manchester Police that they did not hold any papers other than those held by the RUC, which, apart from the Stalker and Sampson reports, the coroner already had in his possession. He also raised the fact that the documents were likely to be covered by public interest immunity. By letter of 4 January 1994 the coroner referred to a conversation of 21 December 1993 with the legal adviser of the RUC, wishing to formally put on record his surprise at hearing that documents in the possession of the Greater Manchester Police had been destroyed. The RUC legal adviser replied on 12 January 1994, stating that he had never said that documents had been destroyed. On 13 January 1994 the coroner requested the legal adviser to confirm that all documents referred to in the schedule to the subpoena were in existence and to identify their location.
51. By letter dated 17 February 1994 the RUC legal adviser informed the coroner that, contrary to information previously given to him, a number of filing cabinets containing documents from the inquiry had been located with the Greater Manchester Police. These had been handed over to the RUC and were in his view covered by the PII Certificate.
52. Meanwhile, on 31 January 1994 the inquest was closed and the jury discharged. The inquest was reopened on 22 March 1994. In reopening the inquest, the coroner informed Mrs Creaney’s solicitors by letter dated 21 February 1994 that:
“Re: inquests into the deaths of –
(1) James Gervaise McKerr, Eugene Toman and John Frederick Burns
... A criminal trial arose out of each of these incidents and normally where that occurs an Inquest is unnecessary as all the facts are likely to have been fully investigated in public at the trial.
However, as you are aware, the circumstances surrounding these deaths was the subject of an investigation carried out by ... Mr John Stalker ... and Mr Colin Sampson ... between May 1984 and April 1987. Their reports were subsequently submitted to the Chief Constable of the Royal Ulster Constabulary. I am of the opinion that the public has a proper interest in knowing whether any further evidence came to light subject to this evidence being within the proper scope of an Inquest. Were it not for this unique aspect of the investigation into the deaths I would not hold Inquests but would proceed to register the deaths.
The purpose of formally opening these Inquests is to determine whether it will be possible for me to achieve my aim. One of the witnesses whom it is my present intention to call is ex-Detective Chief Superintendent John Thorburn ... who played a leading role in the ... investigation. He would be in a position to give material evidence only if he had access in advance of the Inquest to certain working papers and other documents which are presently in the custody of the Chief Constable. After a lapse of seven years it is important that he has the opportunity to refresh his memory by carefully re-examining these so that the evidence that he gives will be as accurate as possible ...”
53. The coroner issued a fresh subpoena on 24 February 1994 requiring Sir Hugh Annesley, Chief Constable of the RUC, to attend before him in connection with the inquest and to produce:
(i) a copy of the Stalker Interim Report (including statement files, exhibits and forensic file);
(ii) a copy of the draft and final Sampson Report (including documents and statement files);
(iii) a copy of the draft and final Stalker Report (including statements, exhibits, and forensic files);
(iv) thirteen files of action sheets;
(v) computer disks;
(vi) photographs and maps;
(vii) press cuttings, a file and videos of TV programmes;
(viii) interview notes of RUC officers;
(ix) trial transcripts;
(x) a book of handwritten notes of trials;
(xi) three interview indexes;
(xii) original RUC documents (ref. Ballynerry Road);
(xiii) fifteen document files designated B105, 119-129, 134, 137-146, 149 and 153; and
(xiv) presentation documents.
54. On 20 April 1994 the Chief Constable of the RUC issued a summons to have the subpoena set aside on the grounds that he had no personal knowledge of the facts at issue at the inquest and should not therefore be required to give evidence; that the documents sought under the subpoena should not be disclosed as they consisted of documents which ought not to be disclosed in the public interest and to which a claim of public interest immunity properly attached; and that in the circumstances the issue of the subpoena was oppressive, vexatious and an abuse of the process of the court.
55. On 4 May 1994 the coroner served an affidavit stating that he did not require the Chief Constable to give any evidence in respect of his personal knowledge but required him to produce the Stalker and Sampson reports that were in his custody. He stated that he required the production of these reports for the sole purpose of enabling ex-Detective Chief Superintendent John Thorburn, who played a leading role in the investigations connected with, and in the preparation of, the reports, to refresh his memory, so that the evidence he gave at the inquest would be as accurate as possible. He further stated the following:
“8. I am of the opinion that the public has a proper interest in knowing whether any further evidence touching the causes of the material deaths came to light as a result of the said investigations, subject, of course, to that evidence being within the proper scope of the Inquests.
9. Were it not for this unique aspect of the investigation into the deaths (being the investigations which led to the production of the said Reports), I would not hold Inquests, but would proceed to register the material deaths.
10. I have issued the material Writs of Subpoena only because the Royal Ulster Constabulary has refused Mr Thorburn access to the original investigation papers.
11. Accordingly, if the material Writs of Subpoena are set aside, so that the said Reports are not available for the purposes of the Inquests, I will consider that there will be no useful purposes to be served in proceeding with the Inquests, and I will close them, and proceed to register the material deaths.”
56. On 5 May 1994 Sir Patrick Mayhew (then Secretary of State for Northern Ireland) issued a further PII Certificate stating that the disclosure of the Stalker and Sampson reports would cause serious damage to the public interest and that he considered it his duty to issue the Certificate in order to protect the public interest, in summary constituting the following:
“(a) the need to protect the operational efficiency of the special units of the Royal Ulster Constabulary and the Armed Forces and the Security Service;
(b) the need to protect the integrity of intelligence operations;
(c) the need to protect the future usefulness of Royal Ulster Constabulary, Armed Forces and Security Service personnel;
(d) the need to protect the lives and safety of Royal Ulster Constabulary, Armed Forces and Security Service personnel and their families, and the lives and safety of persons, and their families, who have provided or may provide information and intelligence to the security forces.”
57. The Secretary of State emphasised the need, first, to protect the integrity of the process of criminal investigations and the making of decisions as to prosecutions and, secondly, the need to preserve the efficacy of the Crown’s efforts to counter terrorism and the safety from terrorist attack of persons involved in those efforts. As regards the work of special units of the RUC, he stated that these units and personnel carried out security, intelligence and surveillance work. The work of all these units required secrecy if it was to be effective. The disclosure of, or evidence about, the identity of members of the special units of the Royal Ulster Constabulary, Armed Forces and the Security Service could substantially impair their capability to perform the tasks assigned to them and could put their lives at risk.
58. On 16 May 1994 the Chief Constable swore a further affidavit in which he stated that he had been informed that copies of all witness statements, forensic evidence photographs and maps from the first two RUC investigations and the Stalker and Sampson inquiries had been provided to the coroner subject to certain deletions from various statements and transcripts. He stated that the coroner was therefore in possession of all the documentary evidence from the three investigations and should be in a position to identify any further evidence which came to light during the Stalker and Sampson inquiries. On 20 May 1994 the Chief Constable applied to the High Court for the writ of subpoena to be set aside.
59. On 25 May 1994 the coroner swore a further affidavit stating that he was satisfied that relevant new material germane to the inquests had been found by the police during the Stalker and Sampson inquiries and that he had spoken to Mr Thorburn (Mr Stalker’s deputy) and Mr Shaw (Mr Sampson’s deputy), who informed him that they required access to the documents in issue in order to identify the headings of the new material and give accurate evidence thereon.
60. On 11 July 1994 Judge Nicholson set aside the subpoenas on the grounds that they were not necessary to the proper purpose of the inquest and that the materials in question should not be disclosed in view of the PII Certificate. He stated, inter alia:
“... [The Coroner] stated that his enquiries satisfied him that there was relevant new material in the Reports. The source of this information must have been Mr Thorburn or Mr Shaw ...
It is not disputed by counsel for the Coroner that all witness statements have been given to the Coroner. There remain recommendations, expressions of opinion, comments, criticisms and the like. I can think of nothing else.
This leads me to the conclusion that the Coroner is seeking material about the ‘broad circumstances’ in which the killings took place in order to deal with rumours and suspicions that there was a ‘shoot to kill’ policy. ...
The recent decision of the Court of Appeal in Northern Ireland indicates that he is not entitled to do so. There is nothing to prevent him from calling Mr Thorburn or Mr Shaw if they can give relevant evidence touching the deaths of the deceased. But in my opinion it is not proper for Mr Thorburn to give an ‘overview’ to the jury. ...
The Reports are not relevant to the Coroner’s inquiry and the overriding public interest in the integrity of the criminal process makes it ‘oppressive and an abuse of the process of the Court’ to permit production of the Reports for the purpose sought by the Coroner. The writs of subpoena should be set aside for these reasons.
This is not a reflection or criticism of the Coroner. I am satisfied that he is genuinely concerned to deal openly with the fears and suspicions that there was a ‘shoot to kill’ policy. But the Coroner’s court is not the proper forum in which this kind of issue can properly be dealt with.
The third question with which I propose to deal with briefly is the claim to public interest immunity in the interests of national security ...
I accept that there is evidence that national security would be imperilled by the production of these two Reports. Were Mr Thorburn to use them to refresh his memory, other parties to the inquest would be entitled to call for them. ...”
61. On 8 September 1994 the coroner issued a ruling abandoning the inquest into Gervaise McKerr’s death, stating:
“I am satisfied that my aim in deciding to hold Inquests for the reasons I expressed to the jury when I opened the Inquests into the deaths of Toman, Burns and McKerr is no longer achievable.”
62. On 19 August 1991 Mrs Creaney issued a writ of summons against the Chief Constable of the RUC in the High Court, claiming damages under the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) and the Fatal Accidents (Northern Ireland) Act 1977 for personal injuries, loss and damage sustained by her husband, his estate and dependants by reason of the assault, battery, conspiracy, negligence, nuisance and trespass to the person by the police officers involved in the security operation on 11 November 1982.
63. No further steps to proceed with these claims were taken by Mrs Creaney or, since her death, by the applicant.
64. Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides, inter alia:
“1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.”
Self-defence or the defence of others is contained within the concept of the prevention of crime (see, for example, Smith and Hogan on criminal law).
65. The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post- mortem and forensic examinations, who the deceased was and how, when and where he died.
66. According to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the coroner (section 7). Every medical practitioner who performs a post-mortem examination has to notify the coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of the district are required to give notice to the coroner (section 8).
67. Rules 12 and 13 of the Coroners Rules give the coroner power to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased.
68. Where the coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials.
69. The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:
“15. The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely: –
(a) who the deceased was;
(b) how, when and where the deceased came by his death;
(c) the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death.
16. Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.”
70. The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (for example, bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “Conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. The jury in England and Wales may also append recommendations to their verdict.
71. However, in Northern Ireland, the coroner is under a duty (section 6(2) of the Prosecution of Offences (Northern Ireland) Order 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed.
72. Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1, paragraph 5) has not been brought into force. However, on 25 July 2000 the Lord Chancellor announced the establishment of an extra-statutory ex gratia scheme to make public funding available for representation for proceedings before coroners in exceptional inquests in Northern Ireland. In March 2001 he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. These included, inter alia, consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship with the deceased.
73. The coroner enjoys the power to summon witnesses whose presence he deems necessary at the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing death may not be compelled to give evidence at the inquest.
74. In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate.
75. Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:
“... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame ... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.”
76. Domestic courts have made, inter alia, the following comments:
“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how ... the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death.
... [previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is ‘To allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v. the Coroner for North Humberside and Scunthorpe, ex parte Roy Jamieson, April 1994, unreported)
“The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and Others (1994) 158 Justice of the Peace Reports 357)
“... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial ...
It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner, ex parte Thompson (1982) 126 Solicitors’ Journal 625)
77. There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence.
78. Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular no. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised chief constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. It was recommended that such disclosure should take place twenty-eight days before the inquest.
79. Paragraph 7 of the circular stated:
“The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material ... Disclosure will therefore be on a voluntary basis.”
Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example:
– where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary);
– where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and
– personal information about third parties not material to the inquest.
Paragraph 11 envisaged that there would be non-disclosure of the investigating officer’s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate.
80. The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (“the 1987 Order”). This replaced the Police Complaints Board, which had been set up in 1977 by the Independent Commission for Police Complaints (ICPC). Since 1 October 2000, the ICPC has been replaced by the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998.
81. The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC.
82. Under Article 9(1)(a) of the 1987 Order, the ICPC was required to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required for the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). For a supervised investigation, a report by the investigating officer was submitted to the ICPC at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement as to whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted.
83. Under Article 10 of the 1987 Order, the Chief Constable was required to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)), save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)).
84. If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the report on that investigation (Article 12(2)). It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ICPC specified (Article 13(1) and (3)).
85. The Director of Public Prosecutions (DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) Order 1972 (“the 1972 Order”), is an independent officer with at least ten years’ experience of the practice of law in Northern Ireland who is appointed by the Attorney-General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are, inter alia:
“(a) to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person;
(b) to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated;
(c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.”
86. Article 6 of the 1972 Order requires, inter alia, coroners and the Chief Constable of the RUC to provide information to the DPP as follows:
“(2) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances.
(3) It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to –
(a) indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ...
and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.”
87. According to the Government’s observations submitted on 18 June 1998, it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that:
(i) if reasons were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice;
(ii) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (for example, sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation;
(iii) the publication of the reasons might cause pain or damage to persons other than the suspect (for example, the assessment of the credibility or mental condition of the victim or other witnesses);
(iv) in a substantial category of cases, decisions not to prosecute were based on the DPP’s assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications;
(v) there might be considerations of national security which affected the safety of individuals (for example, where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants).
88. Decisions of the DPP not to prosecute have been subject to applications for judicial review in the High Court.
In R. v. DPP, ex parte C (1995) 1 Criminal Appeal Reports 141, Lord Justice Kennedy held, concerning a decision of the DPP not to prosecute in an alleged case of buggery:
“From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute:
(1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100);
(2) because the Director of Public Prosecutions failed to act in accordance with his own settled policy as set out in the code; or
(3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”
89. In the case of R. v. the DPP and Others, ex parte Timothy Jones, the Divisional Court on 22 March 2000 quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the DPP – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury – required further explanation.
90. R. v. DPP, ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional Court of 17 May 2000), concerned the DPP’s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner, although the inquest jury had reached a verdict of unlawful death – there was evidence that prison officers had used a neck lock which was forbidden and dangerous. The DPP reviewing the case still concluded that the Crown would be unable to establish manslaughter from gross negligence. The Lord Chief Justice noted:
“Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”
As regards whether the DPP had a duty to give reasons, the Lord Chief Justice said:
“It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake’s conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroner’s Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake’s conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.”
On this basis, the court reviewed whether the reasons given by the DPP in that case were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute. It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute. The decision was quashed and the DPP was required to reconsider his decision whether or not to prosecute.
91. On 7 June 2000 in the case of an application by David Adams for judicial review, the High Court in Northern Ireland considered the applicant’s claim that the DPP had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police. It noted that there was no statutory obligation on the DPP under the 1972 Order to give reasons and considered that no duty to give reasons could be implied. The fact that the DPP in England and Wales had in a number of cases furnished detailed reasons, whether from increasing concern for transparency or in the interests of the victim’s families, was a matter for his discretion. It concluded on the basis of authorities that only in exceptional cases such as the Manning case (see paragraph 90 above) would the DPP be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice Kennedy (see paragraph 88 above) were infringed. Notwithstanding the findings in the civil case, it was not persuaded that the DPP had acted in such an aberrant, inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted.
92. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
93. Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.
94. Other relevant provisions read as follows:
“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”
“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”
95. Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (UN Principles on Extra-legal Executions), adopted on 24 May 1989 by the Economic and Social Council in Resolution 1989/65, provides, inter alia:
“There shall be a thorough, prompt and impartial investigation of all suspected cases of extra-legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances. ...”
96. Paragraphs 10 to 17 of the UN Principles on Extra-legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths.
Paragraph 10 states, inter alia:
“The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify. ...”
Paragraph 11 specifies:
“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles.”
Paragraph 16 provides, inter alia:
“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence. ...”
Paragraph 17 provides, inter alia:
“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law. ...”
97. The “Minnesota Protocol” (model protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides, inter alia, in Section B on the “Purposes of an inquiry”:
“As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:
(a) to identify the victim;
(b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible;
(c) to identify possible witnesses and obtain statements from them concerning the death;
(d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death;
(e) to distinguish between natural death, accidental death, suicide and homicide;
(f) to identify and apprehend the person(s) involved in the death;
(g) to bring the suspected perpetrator(s) before a competent court established by law.”
In Section D, it is stated that “in cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established”.
98. In the report on its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1997, published on 13 January 2000, the European Committee for the Prevention of Torture (CPT) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill-treatment. It commented, inter alia, on the statistically few criminal prosecutions and disciplinary proceedings which were brought, and identified certain aspects of the procedures which cast doubt on their effectiveness.
The chief officers appointed officers from the same force to conduct the investigations, save in exceptional cases where they appointed an officer from another force, and the majority of investigations were unsupervised by the Police Complaints Authority.
The report stated in paragraph 55 et seq.:
“As already indicated, the CPT itself entertains reservations about whether the PCA [Police Complaints Authority], even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT, the creation of a fully-fledged independent investigating agency would be a most welcome development. Such a body should certainly, like the PCA, have the power to direct that disciplinary proceedings be instigated against police officers. Further, in the interests of bolstering public confidence, it might also be thought appropriate that such a body be invested with the power to remit a case directly to the CPS [Crown Prosecution Service] for consideration of whether or not criminal proceedings should be brought.
In any event, the CPT recommends that the role of the ‘chief officer’ within the existing system be reviewed. To take the example of one Metropolitan Police officer to whom certain of the chief officer’s functions have been delegated (the Director of the CIB [Criminal Investigations Bureau]), he is currently expected to: seek dispensations from the PCA; appoint investigating police officers and assume managerial responsibility for their work; determine whether an investigating officer’s report indicates that a criminal offence may have been committed; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer’s report, and liaise with the PCA on this question; determine which disciplinary charges should be brought against an officer who is to face charges; in civil cases, negotiate settlement strategies and authorise payments into court. It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way.
57. ... Reference should also be made to the high degree of public interest in CPS decisions regarding the prosecution of police officers (especially in cases involving allegations of serious misconduct). Confidence about the manner in which such decisions are reached would certainly be strengthened were the CPS to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought. The CPT recommends that such a requirement be introduced.”
VIOLATED_ARTICLES: 2
NON_VIOLATED_ARTICLES: 13
14


ITEMID: 001-86146
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: GRANDCHAMBER
DATE: 2008
DOCNAME: CASE OF BURDEN v. THE UNITED KINGDOM
IMPORTANCE: 1
CONCLUSION: Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);No violation of Art. 14+P1-1
JUDGES: Anatoly Kovler;András Baka;Corneliu Bîrsan;Egbert Myjer;Elisabeth Steiner;Françoise Tulkens;Giovanni Bonello;Ineta Ziemele;Isabelle Berro-Lefèvre;Javier Borrego Borrego;Jean-Paul Costa;Josep Casadevall;Kristaq Traja;Lech Garlicki;Margarita Tsatsa-Nikolovska;Mindia Ugrekhelidze;Nicolas Bratza;Stanislav Pavlovschi
TEXT: 9. The facts of the case, as submitted by the parties, may be summarised as follows.
10. The applicants are unmarried sisters, born on 26 May 1918 and 2 December 1925 respectively. They have lived together, in a stable, committed and mutually supportive relationship, all their lives; for the last thirty-one years in a house built on land inherited from their parents in Wiltshire.
11. The house is owned by the applicants in their joint names. According to an expert valuation dated 12 January 2006, the property was worth 425,000 pounds sterling (GBP), or GBP 550,000 if sold together with the adjoining land. The sisters also jointly own two other properties, worth GBP 325,000 in total. In addition, each sister owns in her sole name shares and other investments worth approximately GBP 150,000. Each has made a will leaving all her property to the other.
12. The applicants submitted that the value of their jointly owned property had increased to the point that each sister’s one-half share was worth significantly more than the current exemption threshold for inheritance tax (see paragraph 13 below).
13. By sections 3, 3A and 4 of the Inheritance Tax Act 1984, inheritance tax is charged at 40% on the value of a person’s property, including his or her share of anything owned jointly, passing on his or her death, and on lifetime transfers made within seven years of death. The charge is subject to a nil rate threshold of GBP 300,000 for transfers between 5 April 2007 and 5 April 2008 (section 98 of the Finance Act 2005).
14. Interest is charged, currently at 4%, on any tax not paid within six months after the end of the month in which the death occurred, no matter what caused the delay in payment. Any inheritance tax payable by a person to whom land is transferred on death may be paid, at the taxpayer’s election, in ten equal yearly instalments, unless the property is sold, in which case outstanding tax and interest must be paid immediately (section 227(1)-(4)).
15. Section 18(1) of the Inheritance Tax Act provides that property passing from the deceased to his or her spouse is exempt from charge. With effect from 5 December 2005 this exemption was extended to a deceased’s “civil partner” (see paragraphs 16-18 below).
16. The purpose of the Civil Partnership Act was to provide same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, and to confer on them, as far as possible, the same rights and obligations as entailed by marriage.
17. A couple is eligible to form a civil partnership if they are (i) of the same sex; (ii) not already married or in a civil partnership; (iii) over the age of 16; and (iv) not within the prohibited degrees of relationship.
18. A civil partnership is, like marriage, indeterminate in nature and can end only on death, dissolution or annulment. The Civil Partnership Act created a comprehensive range of amendments to existing legislation, covering, inter alia, pensions, tax, social security, inheritance and immigration, intended to create parity between civil partnership and marriage for all purposes except in the very few cases where there was an objective justification for not doing so. The courts have similar powers to control the ownership and use of the civil partners’ property upon dissolution of a civil partnership as upon dissolution of a marriage.
19. When the Civil Partnership Bill was passing through Parliament, an amendment to it was adopted in the House of Lords by 148 votes to 130, which would have had the effect of extending the availability of civil partnership, and the associated inheritance-tax concession, to family members within the “prohibited degrees of relationship”, if (i) they were over 30 years of age; (ii) they had cohabited for at least twelve years; and (iii) they were not already married or in a civil partnership with some other person. The amendment was reversed when the Bill returned to the House of Commons.
20. During the course of the debate in the House of Lords, Lord Alli, a Labour peer, stated:
“I have great sympathy with the noble Baroness, Lady O’Caithlin [the Conservative peer who proposed the amendment], when she talks about siblings who share a home or a carer who looks after a disabled relative. Indeed, she will readily acknowledge that I have put the case several times – at Second Reading and in Grand Committee –and I have pushed the government very hard to look at this issue. There is an injustice here and it needs to be dealt with, but this is not the Bill in which to do it. This Bill is about same-sex couples whose relationships are completely different from those of siblings.”
During the same debate, Lord Goodhart, a Liberal Democrat peer, stated:
“There is a strongly arguable case for some kind of relief from inheritance tax for family members who have been carers to enable them to continue living in the house where they have carried out their caring duties. But that is a different argument and this is not the place or the time for that argument. This Bill is inappropriate for dealing with that issue.”
During the course of the debate in the Standing Committee of the House of Commons, Jacqui Smith, Member of Parliament, Deputy Minister for Women and Equality, stated:
“As I suggested on Second Reading, we received a clear endorsement of the purpose of the Bill – granting legal recognition to same-sex couples, ensuring that the many thousands of couples living together in long-term committed relationships will be able to ensure that those relationships are no longer invisible in the eyes of the law, with all the difficulties that that invisibility brings.
We heard a widespread agreement from Members across almost all parties that the Civil Partnership Bill is not the place to deal with the concerns of relatives, not because those concerns are not important, but because the Bill is not the appropriate legislative base on which to deal with them.”
21. The Human Rights Act 1998 entered into force on 2 October 2000. Section 3(1) provides:
“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
Section 4 of the 1998 Act provides (so far as relevant):
“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. ...
(6) A declaration under this section ...
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it was given; and
(b) is not binding on the parties to the proceedings in which it is made.”
Section 6 provides:
“(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if
(a) as a result of one or more provisions of primary legislation, the authority could not have acted any differently; or
(b) in the case of one or more provisions of ... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. ...”
Section 10 provides:
“(1) This section applies if
(a) a provision of legislation has been declared under section 4 to be incompatible with a Convention right and, if an appeal lies –
(i) all persons who may appeal have stated in writing that they do not intend to do so; or
(ii) the time for bringing an appeal has expired and no appeal has been brought within that time; or
(iii) an appeal brought within that time has been determined or abandoned; or
(b) it appears to a Minister of the Crown or Her Majesty in Council that, having regard to a finding of the European Court of Human Rights made after the coming into force of this section in proceedings against the United Kingdom, a provision of legislation is incompatible with an obligation of the United Kingdom arising from the Convention.
(2) If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.”
22. The Government submitted that the objective of giving the national courts the power under section 4 had been to provide a formal means for notifying the government and Parliament about a situation in which legislation was found not to comply with the Convention, and to provide a mechanism for speedily correcting the defect. Once a declaration had been made (or once the European Court of Human Rights had found a violation based on a provision of domestic law), there were two alternative avenues for putting right the problem: either primary legislation could be introduced in Parliament, or the minister concerned could exercise his summary power of amendment under section 10 of the Human Rights Act 1998.
23. When the Human Rights Bill passed through the House of Lords on 27 November 1997, the Lord Chancellor explained that:
“[W]e expect that the government and Parliament will in all cases almost certainly be prompted to change the law following a declaration of incompatibility.”
One of the ministers with responsibility for the Human Rights Act explained to the House of Commons on 21 October 1998 that:
“Our proposals [for remedial orders] safeguard parliamentary procedures and sovereignty, ensure proper supervision of our laws and ensure that we can begin to get the ability both to enforce human rights law and to create a human rights culture. They also ensure that we can do it in the context of not having to worry that if something is decided by the Strasbourg Court or by our courts that creates an incompatibility, we do not have a mechanism to deal with it in the quick and efficient way that may be necessary.”
24. According to statistics provided by the Government and last updated on 30 July 2007, since the Human Rights Act came into force on 2 October 2000 there had been twenty-four declarations of incompatibility. Of these, six had been overturned on appeal and three remained subject to appeal in whole or in part. Of the fifteen declarations which had become final, three related to provisions that had already been remedied by primary legislation at the time of the declaration; seven had been remedied by subsequent primary legislation; one had been remedied by a remedial order under section 10 of the Act; one was being remedied by primary legislation in the course of being implemented; one was the subject of public consultation; and two (relating to the same issue) would be the subject of remedial measures which the government intended to lay before Parliament in the autumn of 2007. In one case, A v. Secretary of State for the Home Department [2005] 2 AC 68, the House of Lords made a declaration of incompatibility concerning section 23 of the Anti-Terrorism, Crime and Security Act 2001, which gave the Secretary of State power to detain suspected international terrorists in certain circumstances. The government responded immediately by repealing the offending provision by section 16 of the Prevention of Terrorism Act 2005.
25. While in common law systems there has traditionally been freedom of testamentary devolution, in civil law systems the order of succession is generally established by statute or code, with some particularly privileged categories of heirs, normally the spouse and close relatives, being granted automatic rights to a portion of the estate (the so-called reserved shares), which cannot generally be modified by the decedent’s will. The position of each heir depends therefore on the combined effect of family law and tax law.
26. From the information available to the Court, it would appear that some form of civil partnership, with varying effects on matters of inheritance, are available in sixteen member States, namely Andorra, Belgium, the Czech Republic, Denmark, Finland, France, Germany, Iceland, Luxembourg, the Netherlands, Norway, Slovenia, Spain, Sweden, Switzerland and the United Kingdom. Spouses and close relatives, including siblings, are granted statutory inheritance rights in virtually all member States. In a majority of member States, siblings are treated less favourably in terms of succession rights than the surviving spouse but more favourably than the surviving civil partner; and only a few member States grant the surviving civil partner inheritance rights equal to those of the surviving spouse. Inheritance tax schemes usually follow the order of succession, although in certain countries, such as France and Germany, the surviving spouse is granted a more favourable tax exemption than any other category of heir.
NON_VIOLATED_ARTICLES: 14
P1
NON_VIOLATED_PARAGRAPHS: P1-1