CASE OF HEMSWORTH v. THE UNITED KINGDOM

1. The case originated in an application (no. 58559/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Irish nationals, Mrs Collette Hemsworth and Mr Michael Hemsworth (“the first and second applicants”), on 12 October 2009.
2. The applicants were represented by Mr J. McGettrick, a lawyer practising in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Yasmine Ahmed, of the Foreign and Commonwealth Office.
3. The applicants mainly complained under Article 2 that there had been an unlawful use of lethal force against the deceased, Mr John Hemsworth, and that the State had not fulfilled its procedural investigative obligations in that respect.
4. On 18 October 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
5. On 11 January 2012 the Irish Government declined to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 ).
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1961 and 1933, respectively and live in Belfast. They are the wife and father, respectively, of Mr John Hemsworth.
A. The death of Mr John Hemsworth
7. The applicants maintained that, at 1 a. m. on 7 July 1997, John Hemsworth was walking home when he was passed by persons who were being chased by police officers from the Blues Operational Support Unit (“Blues OSU”) of the Royal Ulster Constabulary (“RUC”). They also contend that one of those officers hit John Hemsworth on the face with a truncheon and that he fell to the ground where he was kicked on the left side and hit on the back with a truncheon by the officers. He went home and informed his wife. He then went to hospital and it is alleged that RUC officers taunted him about the incident on the way there. He was treated for undisplaced fractures to both sides of his right jaw bone.
8. Following an article in a local newspaper about the incident, two witnesses (one an allegedly direct witness) came forward.
9. Having experienced headaches and tingling in one arm in late October/early November 1997, on 27 December 1997 John Hemsworth began vomiting and complained of severe headaches. He collapsed and was transferred to hospital where he died on 1 January 1998.
B. The RUC investigation and the inquest
10. On 3 January 1998 a pathologist found that John Hemsworth died from a cerebral infarction and it was not possible to correlate the recent thrombosis causing the fatal cerebral infraction with a facial injury in 1997.
11. On 8 January 1998 the RUC began an investigation supervised by the Independent Commission for Police Complaints (“ICPC”).
12. On 30 April 1998 the Coroner registered the death as he considered, given the pathologist ’ s report, that an inquest was not necessary.
13. In his report of 4 August 1999, an expert in forensic medicine instructed by the first applicant found that it was “highly likely” that the assault was the sole underlying cause of death. Further to her request, on 2 February 2000 the Attorney General ordered the Coroner to hold an inquest.
14. Subsequently, a forensic expert briefed by the Coroner also concluded that, despite the delay between the fatal cerebral infarct and the injury of July 1997, it was likely that they were “ linked in terms of causation ”. The applicants claimed that the original pathologist later expressed his agreement with these later two expert opinions.
15. The RUC then asked the applicants to provide them with all relevant information and evidence and for their statements. The applicants forwarded the deceased ’ s medical records and gave statements to the RUC. The two witnesses who had volunteered were interviewed as well as other persons living in the area. Numerous police and military personnel on duty in the area, as well as those deployed to the street where John Hemsworth was allegedly assaulted, were interviewed. The RUC Report on the Investigation dated 3 May 2001 accepted that John Hemsworth had been injured on 7 July 1997 but not that RUC officers had assaulted him or that those injuries had led to his death. Certain parts of this report are redacted.
16. On 7 June 2001 the Coroner opened a pre-inquest hearing, in 16 cases including into John Hemsworth ’ s death, to hear submissions on the implications of the judgments of this Court of 4 May 2001 in certain cases concerning deaths in Northern Ireland ( Hugh Jordan v. the United Kingdom, no. 24746/94, (extracts); McKerr v. the United Kingdom, no. 28883/95, both in ECHR 2001 - III; Shanaghan v. the United Kingdom, no. 37715/97; and Kelly and Others v. the United Kingdom, no. 30054/96 ). The first applicant was legally represented, as she was for all domestic proceedings. The hearing was adjourned given the possibility of the referral of those cases to the Grand Chamber of this Court.
17. In September 2001 the Coroner adjourned the pre-inquest hearing, although he indicated that John Hemsworth ’ s inquest would take place after Pearse Jordan ’ s inquest ( to whom the Hugh Jordan judgment related ).
18. On 1 September 2000 the first applicant applied for legal aid for the inquest under the Lord Chancellor ’ s Extra-Statutory Scheme (established in July 2000). On 5 June 2001 she began a judicial review action : that evening the Lord Chancellor granted her limited funding. The action continued in order to challenge that limitation on funding. On 7 January 2003 the High Court found against her as did the Court of Appeal (9 March 2005). With information gleaned from that action, in January 2002 the first applicant applied for legal aid under the Green Form Scheme. In February 2002 limited legal aid was proposed but in a manner she considered inconsistent with the State ’ s approach in the first judicial review action. On 21 May 2003 the Legal Aid Department accepted that there had been some confusion as to the sources of legal aid for inquests and it issued a notice of clarification. The first applicant again issued judicial review proceedings. On 26 April 2004 the High Court found in her favour.
19. In November 2002 the first applicant wrote to the Coroner seeking progress in the inquest. The Coroner responded that he awaited the judgments of the House of Lords in the cases of Amin ( Regina v. Secretary of State for the Home Department ex parte Amin, [2003] UKHL 51) and Middleton ( Regina v. Her Majesty ’ s Coroner for the Western District of Somerset and other ex parte Middleton, [2004] UKHL 10). The first applicant requested the Coroner to progress certain pre-inquest matters. At a hearing in February 2003, some disclosure was made to the first applicant.
20. The applicants claimed that, during that hearing, the Coroner advised that there was no evidence that the deceased had been struck by RUC officers. The first applicant applied for the Coroner to recuse himself. At a further pre-inquest hearing on 2 September 2003, the Coroner accepted that he had to investigate the allegations that RUC officers were responsible for the death so the first applicant did not pursue the matter further.
21. On 20 December 2004, at a further pre-inquest hearing, the first applicant provided the Coroner with a list of witnesses they required including the police officers who were allegedly likely to have been responsible for and/or to have witnessed the assault.
22. A pre-inquest hearing was convened in March 2008 when the Coroner ruled on the witnesses he proposed to call, none of whom were RUC officers. The first applicant applied to the Coroner to recuse himself. The Coroner refused but indicated that he would receive further representations as to why RUC witnesses were required. The first applicant made such submissions. By letter of 14 November 2008 the Coroner refused to call any RUC witnesses or to recuse himself. The first applicant began a judicial review action. On 9 March 2009 the High Court found in her favour: a new Coroner was to be appointed and the RUC witnesses sought were to be called to give evidence.
23. Another pre-inquest hearing took place on 16 September 2009: it was agreed to call the additional witnesses requested by the first applicant and the Crown Solicitor ’ s Office confirmed that full disclosure of all relevant materials had been made to the Coroner and to the next-of-kin, subject to a few isolated matters which were being dealt with.
24. The inquest began on 21 September 2009. It did not sit each day and certain witnesses were unavailable through ill-health. On 8 October 2009 the Coroner discharged the jury due to evidence which had emerged. The Coroner had decided to take a statement from a possible eye-witness to the assault. On receipt of the statement, it emerged that Officer M, of the Police Service Northern Ireland (the “PSNI” replaced the RUC in 2001), had taken the statement on the Coroner ’ s behalf. However, Officer M had been a member of the RUC at the time of the alleged assault. He was also the Deputy Investigation Officer and, in addition, he was due to be called as a witness. The first applicant therefore requested and, in October 2009, the Coroner obtained and disclosed Officer M ’ s journal entries on the police investigation. It emerged therefrom that Officer M had interviewed a soldier (Private G) in 2000. Private G had told Officer M that, on the day when John Hemsworth was allegedly assaulted, Private G had seen an officer in the RUC Blues OSU assaulting a civilian with a baton in an area close to the location of Mr Hemsworth ’ s alleged assault. Private G had also told Officer M that a senior military officer, as well as a senior RUC officer from the RUC Blues OSU, had told him that he should not report this incident to his superiors. Given the time it would take to recall witnesses and to call Private G, the Coroner considered it preferable to discharge the jury and conduct the inquest afresh.
25. The Coroner was advised by the Crown Solicitor ’ s Office that all documentation in relation to Private G was destroyed in August 2009. The Coroner ordered the PSNI to prepare a paginated and indexed bundle of all material held by them in relation to the death of John Hemsworth, including any documentation held in relation to Private G. Officers unconnected with the original investigation should conduct this disclosure exercise. The PSNI confirmed that the Legacy Support Unit within the PSNI would deal with disclosure and that any officers allegedly involved in the assault or the subsequent investigation would have no further involvement.
26. On 29 November 2009 a further pre-inquest hearing was held, when the PSNI confirmed that, by 4 December 2009, the Coroner would be provided with the bundle of documents and the first applicant with a redacted version of same. While no documents in relation to Private G ’ s allegations had been retained, Private G had been traced and his statement would be taken. The inquest was scheduled to begin on 21 January 2010.
27. The inquest resumed on 25 January 2010. On the second and third days of the inquest, two jurors advised the Coroner of connections to the police. The Coroner acceded to the first applicant ’ s request to discharge the jury on the basis that the jury may have been already tainted.
28. On 22 April 2010 the first applicant obtained an expert medical report which found that marks on the deceased ’ s face and back (apparent from photographs taken after the alleged assault) were consistent with the allegations of assault by police baton. The first applicant and the Coroner further corresponded about progressing the inquest. In June 2010 the Crown Solicitor ’ s Office stated that it would brief an expert on the photographs and the marks. It did so in October 2010. In January 2011 the Crown Solicitor ’ s Office ’ s expert reported but did not address the question whether police batons could have made the marks on the deceased ’ s body. In May 2011 a supplementary expert report was submitted.
29. The inquest began on 16 May 2011. Evidence was heard until 24 May 2011. Closing speeches were made on 26 May 2011. The first applicant was too ill to attend. Given the intervening judgment of the Supreme Court of 18 May 2011 ( McCaughey and Another, Re Application for Judicial Review ([2011] UKSC 20, paragraph 4 3 below ), the Coroner agreed that, so far as possible, the inquest would be conducted in such a manner as to comply with Article 2 of the Convention.
30. On 27 May 2011 the inquest jury rendered its verdict. It found the medical causes of death to be cerebral infarction and thrombosis of the right internal carotid artery. The jury accepted that John Hemsworth was injured on 7 July 1997; that his injuries included fractures to both the right and left hand sides of his jaw bone, tramline bruising to the left jaw, neck and lower left side of his back as well as bruising to the right jaw; that those injuries “were most probably the underlying cause of his death”; that the injuries were “consistent with those caused by someone being struck by a baton, according to several expert witnesses”; that the photographs showed “distinctive and characteristic bruising associated with baton injuries”; that “the factures and bruising injuries were caused by being struck by a baton and kicked”; and that, since the RUC Blues OSU were the only police on the relevant street on the relevant night, it was “highly probable” that one or more of those officers was responsible for the injuries to Mr Hemsworth.
31. The Coroner announced that he would refer the matter to the Director of Public Prosecutions (“DPP”) and ensured the production, from public funds, of a transcript of the inquest proceedings. Having waited until the new DPP was established in his post, on 25 January 2012 he formally referred the case to the DPP pursuant to section 35(3) of the Criminal Justice ( Northern Ireland ) Act 2002, indicating that the verdict “should be sufficient to indicate the contentious background to the death and its wider significance”. On 3 February 2012 the DPP ’ s office acknowledged the referral. Further to the applicants ’ queries, on 23 April 2012 the Coroner confirmed the referral and on 14 May 2012 that the DPP had acknowledged the referral. In their observations of 3 July 2012 the Government submitted that the matter was the subject of “ active consideration ” by the DPP.
32. On 5 September 2001 the applicant initiated civil proceedings against the PSNI and on 10 August 2011 a Notice of Intention to Proceed was served.
33. Further to the first applicant ’ s request, the Police Ombudsman reviewed the police file. In his report of 1 May 2007 he considered that the medical experts did not agree on the extension of a causal link between the July 1997 injuries and the subsequent death so that there was no evidence that any RUC officer was responsible for John Hemsworth ’ s death and he could identify nothing further that he could do to take the matter forward.
II. RELEVANT DOMESTIC LAW AND PRACTICE
34. The Court refers to the Domestic law and Practice in its judgment in the case of McCaughey v. the United Kingdom (no. 43098/09, 16 July 2013 ). It repeats below the following aspects for ease of reference.
35. Section 35(3 )-(5 ) of the Justice ( Northern Ireland ) Act 2002 ( amending the Prosecution of Offences (Northern Ireland ) Order 1972) provides as follows :
“ (3) Where the circumstances of any death which has been, or is being, investigated by a coroner appear to the coroner to disclose that an offence may have been committed against the law of Northern Ireland or the law of any other country or territory, the coroner must as soon as practicable send to the Director a written report of the circumstances.
36. In R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson ([1995] QB 1, concerning England and Wales ) the Court of Appeal ruled that “how” meant “by what means”, a question directed to how the deceased came by his death. While a verdict could properly incorporate a brief and neutral statement, the verdict was to be factual, expressing no judgment or opinion and it was not the jury ’ s function to prepare detailed factual statements.
37. In 2001-2003 the Court adopted six similar judgments concerning the investigation of killings by security forces in Northern Ireland ( Hugh Jordan v. the United Kingdom, McKerr v. the United Kingdom, Shanaghan v. the United Kingdom, and Kelly and Others v. the United Kingdom, all four cited above, as well as McShane v. the United Kingdom, no. 43290/98, 28 May 2002; and Finucane v. the United Kingdom, no. 29178/95, ECHR 2003 ‑ VIII ). A number of domestic judicial review applications followed.
38. In the case of Regina v. Secretary of State for the Home Department ex parte Amin ( [2003] UKHL 51) the House of Lords ruled on the requirements of an Article 2 compliant investigation. In R (Middleton) ν West Somerset Coroner ([2004] 2 A.C. 182) the House of Lords reviewed the scope of the Jamieson inquest and found that, since a Jamieson inquest could not examine whether the conduct of State agents might reasonably have prevented death, it was incompatible with Article 2. To comply with that Article, the inquest had to consider “by what means” and “in what circumstances” the deceased came by his death, so that the inquest verdict would be broader in scope.
39. On 11 March 2004 the House of Lords found that there was no obligation to conduct an inquiry compatible with Article 2 when the death had occurred before the HRA came into force ( In re McKerr ([2004] 1 W.L.R. 807).
40. On 28 March 2007 the House of Lords delivered its judgment ( Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14). It relied on the McKerr judgment to the effect that the HRA did not apply to a pre-HRA death or, therefore, to the investigation of any such death. However, Section 8 of the 1959 Act plainly required the police to disclose to the Coroner such information about the deaths as the police was then or thereafter able to obtain, subject to any relevant privilege or immunity.
41. In a later judicial review action, Hugh Jordan successfully contested a PSNI refusal to disclose to him all documents disclosed by it to the Coroner, except those to which valid professional privilege/immunity attached ( In re Jordan ’ s Application [2008] NIQB 148). The High Court ’ s decision was informed by:
“ ... the confusion that has been created by the fragmented production of documents over the years. There has been duplication of some documents and a failure to produce certain documents on some occasions and then their production on other occasions. It has been acknowledged that the level of redactions have on occasions been excessive.”
Accordingly, the High Court ordered (section 8 of the 1959 Act) the PSNI to, inter alia, make a full and indexed disclosure to Hugh Jordan.
42. In 2008 alone there were six judicial review applications as regards Pearse Jordan ’ s inquest. In 2009 the Court of Appeal made the following comment about the delay in holding the inquest into Pearse Jordan ’ s death ( Hugh Jordan v. the Senior Coroner [2009] NICA 64):
“ This inquest has taken an extremely long time to reach this point and has been dogged by procedural wrangling, frequent judicial review applications and hearings in the House of Lords and Strasbourg all of which have contributed to the length and complexity of the inquest.
The current state of coronial law is extremely unsatisfactory. It is developing by means of piecemeal incremental case law. It is marked by an absence of clearly drafted and easily enforceable procedural rules. Its complexity, confusion and inadequacies make the function of a coroner extremely difficult and is called on to apply case law which does not always speak with one voice or consistently. One must sympathise with any coroner called on to deal with a contentious inquest of this nature which has become by its nature and background extremely adversarial. The problems are compounded by the fact that the [PSNI] which would normally be expected to assist a coroner in non contentious cases is itself a party which stands accused of wrong doing. It is not apparent that entirely satisfactory arrangements exist to enable the PSNI to dispassionately perform its functions of assisting the coroner when it has its own interests to further and protect. If nothing else, it is clear from this matter that Northern Ireland coronial law and practice requires a focused and clear review to ensure the avoidance of the procedural difficulties that have arisen in this inquest. What is also clear is that the proliferation of satellite litigation is extremely unsatisfactory and diverts attention from the main issues to be decided and contributes to delay. ”
43. Further to the delivery of this Court ’ s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009), the Supreme Court reversed McKerr and accepted that an inquest should be compliant with Article 2 even for a pre-HRA death ( McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20 ).
44. The applicants complained, under the substantive and procedural aspects of Article 2, about John Hemsworth ’ s death and, under Article 13 of the Convention, that they had no effective domestic remedy.
45. Article 2, in so far as relevant, reads as follows:
“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”
46. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
I. ALLEGED VIOLATIONS OF ARTICLE 2, ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION
47. The Government maintained that the applicants had not yet exhausted domestic remedies as regards the substantive complaint because their civil action was pending. While there appeared to be two lines of relevant case-law, they considered that the governing authority lay with the Caraher v. the United Kingdom line ( (dec.), no. 24520/94, ECHR 2000 I; the six judgments concerning Northern Ireland cited at paragraph 3 7 above; and Bailey v. the United Kingdom, (dec.) no. 39953/07, 19 January 2010 ). The cases, which the applicants considered showed a contrary line, were distinguishable. In any event, given the pending decision of the DPP, the possible referral to the Police Ombudsman, possible criminal proceedings and related judicial review proceedings, it would be premature and inappropriate to examine the applicant ’ s complaint of a substantive violation of Article 2 of the Convention.
48. The Government also argued that there had been no violation of the procedural aspects of Article 2 of the Convention. Further to the judgment of the Supreme Court in May 2011 ( McCaughey and another, Re Application for Judicial Review ([2011 UKSC 20), the Coroner was legally obliged to, and did, conduct an inquest in accordance with Article 2 of the Convention. The investigation was effective because, inter alia, that Convention compliant inquest led to a jury verdict which was sufficiently focused as to assist with the identification of a person responsible and to ensure accountability: indeed the Coroner had referred the matter to the DPP. The applicants ’ reference to the lack of police witnesses was imprecise and, notably, did not indicate how that affected the conduct of the inquest. The investigation was independent as it was supervised by the Independent Commission for Police Complaints (“ICPC”) and, in any event, the applicant did not seek to apply for judicial review of the decision of the Police Ombudsman. As to public scrutiny, the next-of-kin declined to participate in the initial investigation in early 1998 but they did participate at other stages of the investigation and they fully participated in the inquest.
49. The Government acknowledged that there had been significant delay but argued that it could be explained and did not breach Article 2 of the Convention. They explained that it was initially thought that it was not a death requiring an inquest and the matter was then re-visited following receipt of the applicants ’ expert report. The RUC investigation then took place. The delay between 2001 and 2009 appears largely to have been caused by the litigation, initiated both by others and by the applicants. The delay between starting and ending the inquest (January 2010 and May 2011) was caused by the necessary discharge of the jury and by the time taken to consider a further report of the applicants. Awaiting the voluminous transcript of the inquest hearing and the establishment of the new DPP in his post explained the short delay in the Coroner referring the case to the DPP.
50. Finally, and as regards the applicant ’ s complaint under Article 13, the Government maintained that the applicants had effective domestic remedies available to them. As well as an Article 2 compliant inquest, they had access to judicial review (to review any future decision or action of the DPP for its compliance with Article 2) and to civil proceedings which were still pending.
51. The applicants complained about a violation of the substantive aspect of Article 2 arguing that Mr Hemsworth had been assaulted by officers from the Blues OSU of the RUC and that he had died as a result. They relied on the jury verdict in this respect.
52. As to the exception invoked by the Government about their pending civil action, they relied on the line of jurisprudence represented by Nikolova and Velichkova v. Bulgaria (no. 7888/03, §§ 55-56, 20 December 2007; Beganović v. Croatia, no. 46423/06, § 56, ECHR 2009 ­ ...; Fadime and Turan Karabulut v. Turkey, no. 23872/04, §§ 31-48, 27 May 2010; Kopylov v. Russia, no. 3933/04, § 121, 29 July 2010; Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010 ­ ...; and Darraj v. France, no. 34588/07, §§ 22-53, 4 November 2010). The present ineffective investigative and inquest processes undermined the civil action so, even if that action was pending, that did not deprive them of their victim status or mean that it could be concluded that they had not yet exhausted domestic remedies.
53. As to those investigative and inquest deficiencies, while the Supreme Court in McCaughey did rule that an inquest had to comply with Article 2, that judgment did not address non-compliance with Article 2 procedural obligations which pre-dated the judgment. That judgment did not therefore address the overall effectiveness of the investigation and its capacity to identify and hold accountable those responsible for the death.
54. They also argued that the investigation lacked independence. The initial investigation was conducted by members of the RUC who lacked hierarchical independence from those officers allegedly responsible for the death. The non-disclosure of essential evidence ( concerning Private G and the eventual destruction of some other evidence ) was one consequence of this and the Court had found (the above-cited Hugh Jordan judgment, at § 142) that supervision by the ICPC was insufficient to cure such a lack of independence of the investigating officers. The Police Ombudsman conducted a review. However, he did not conduct any further investigation and this was clearly inadequate to redress any deficiency ( Brecknell v. the United Kingdom, no. 32457/04, § 76, 27 November 2007 ). He also proceeded on a false premise ( later rejected by the inquest jury) as to the medical cause of death.
55. Delay had also prejudiced the effectiveness of the investigation. Although domestic law had changed to allow the inquest to compel the attendance of witnesses, key witnesses were unable to attend whereas they would have been more likely to have been available in 1997: the first applicant was too ill to attend; Ms L was a potential eye-witness but was not fit to attend; 9 RUC officers could not attend as they were either sick, out of the jurisdiction or could not be located; and the Senior Investigating Officer was unable to attend because of ill-health. Witnesses who attended were also able to rely on the passage of time to explain their inability to recall issues and/or to furnish documents. The delay to date would make future identification of the responsible officers difficult which would, in turn, be likely to affect the decision of the DPP as regards any potential prosecution. The delay also led to the destruction of evidence: the applicants pointed to early disclosure issues as regards the evidence of Private G and the loss of relevant documents, which loss was of particular relevance since Private G had revoked his complaint in his oral evidence. More generally, the delay in holding the inquest rendered public scrutiny of it ineffective : while the applicants and the public had access to the inquest, the inquest was limited and, to a large extent, this was because of the delay in holding it. The jury was unable to identify the assailant and, given the inadequacy of the original investigation combined with delay, it was unlikely that the perpetrator(s) would ever be identified.
56. Finally, the applicants also complained that investigative delay was, of itself, a breach of Article 2 quite apart from any question of whether delay undermined the effectiveness of the investigation and inquest processes. The State was responsible for delay which was significant even compared to the endemic delays in investigations and inquests in Northern Ireland. They maintained that the delay was such that it caused them significant stress and ill-health and that it undermined public confidence in the inquest process.
57. They referred to particular periods of delay they considered unjustified including: between the death of John Hemsworth and the direction of the Attorney General to hold an inquest (January 1999 and February 2000); between the delivery of the House of Lords ’ judgment of March 2007 and the first pre-inquest hearing thereafter (March 2007-March 2008); between the decision of the Coroner not to call RUC witnesses and of the High Court directing that they be called (March 2008-March 2009); and between the date initially fixed for the inquest and the date it began (January 2010-May 2011). The failure by Officer M to disclose the evidence of Private G clearly led to further delay (September 2009-December 2009).
58. A delay of over 13 years before an Article 2 compliant inquest opened was excessive, unexplained and endemic. The Government accurately explained the delay between 2001-2009 by reference to pending litigation. However, that reveals a failure by the State to respond adequately to the procedural problems highlighted in the above-mentioned judgments of this Court concerning the use of lethal force in Northern Ireland. Instead of legislating comprehensively, the State left it to the applicants and others to clarify and develop domestic law through litigation and it cannot now blame those individuals for the delay that that engendered.
59. Finally, the applicants complained under Article 13 in conjunction with Article 2, that they had no effective domestic remedy as regards excessive investigative delay.
60. Save in relation to the complaint about investigative delay, the Court is not in a position to consider the merits of the complaints under the substantive and procedural aspects of Article 2 because the applicants ’ civil action is pending (for example, Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 ‑ I; Hay v. the United Kingdom (dec.), 41894/98; McKerr v. the United Kingdom, no. 2 8883/95, § 19-23, ECHR 2001 ‑ III; and Bailey v. the United Kingdom, (dec.) no. 39953/07, 19 January 2010 ) and because the initiation of further relevant investigative procedures, including of a criminal and/or disciplinary nature, remains possible (for example, Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 55-56, 20 December 2007; Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010 ­ ...; and Darraj v. France, no. 34588/07, §§ 22-53, 4 November 2010 ).
61. The applicants ’ civil action, issued in 2001, is pending. The Court does not accept that there is any demonstrated factor which can be considered to have deprived the civil courts of their ability to establish the facts and determine the lawfulness or otherwise of John Hemsworth ’ s death and within any applicable limitation period, although the present inquest verdict and any future criminal/disciplinary proceedings (see immediately below) could clearly inform the civil action. While the lapse of time would have made it difficult for the civil court to piece together the evidence, any such attempt should in principle take place in a domestic, not in an international, forum ( McKerr v. the United Kingdom, § 118; and Hugh Jordan §§ 111-112).
62. As to any further criminal or disciplinary proceedings, the Court considers particularly relevant two recent developments of May 2011.
In the first place, the Supreme Court delivered the above-cited judgment in the McCaughey case whereby it found that the procedural aspects of Article 2 could be engaged as regards outstanding investigative acts even in respect of a pre-HRA death. Accordingly, the Coroner in the present inquest agreed that that inquest would be Article 2 compliant in so far as possible. The applicants acknowledged “significant moves” made towards Article 2 compliant inquests including that the remit of the inquest no longer prevented a jury from exploring fully how a deceased came by his death and that a jury verdict was now capable of playing an effective role in the identification or prosecution of any criminal offences. They did not take issue with the conduct of their inquest in May 2011.
Secondly, the inquest verdict was largely in the applicants ’ favour in that it explicitly accepted key aspects of their claims about the death of John Hemsworth: that he was injured on 7 July 1997, that those injuries were most probably the underlying cause of his death and, further, that it was highly probable that one or more officers of the RUC Blues OSU was responsible for those injuries. While the inquest jury could not hold an individual accountable, the Coroner referred the matter to the DPP (paragraph 3 1 above) and the Government have confirmed that that matter is being actively considered by the DPP.
63. These two factors mean that certain criminal and disciplinary proceedings, of central relevance to the investigative obligation under Article 2, can now be initiated by the State. In the first place, the DPP is required to examine the Coroner ’ s reference and decide whether to pursue criminal charges against individual RUC officers from the Blues OSU. He may decide to pursue criminal charges and, even if not, he would have to give reasons, which reasons would, in turn, be amenable to judicial review. Secondly, having regard to the specific findings of the inquest jury as regards the likely responsibility of RUC officers from the Blues OSU, there would be no obstacle to the State initiating relevant disciplinary procedures including attempting to identify the relevant officers.
64. The applicants considered that a number of deficiencies had already prejudiced the investigation and thus any future proceedings. They pointed to a structural independence issue which had undermined the investigation. They also highlighted an attempted to cover-up Private G ’ s evidence (see paragraphs 2 4 -2 6 above ). They recalled that Article 2 requires a serious allegation of attempted obstruction of an investigation to be examined and doubts confirmed or laid to rest ( McKerr, § 137). The applicants also argued that delay had also already flawed the investigation (availability of documents and witnesses and ability to recall facts). However, despite these alleged flaws, the inquest jury was able to reach the above-described conclusions in the applicants ’ favour. The Court does not consider that it has been shown that the investigation has been so inherently flawed as to deprive the DPP of his ability to decide on the pursuit of any charge, or the criminal courts of their ability to establish the facts and determine criminal responsibility for John Hemsworth ’ s death. Neither can it be excluded that future criminal, disciplinary or other procedures could adequately address the obstruction - of - justice allegation.
65. Neither should the applicants ’ complaint about the public nature of the investigation be addressed at this point. The Court recalls that disclosure of police reports and investigative materials may involve sensitive issues with possible prejudicial effects on individuals or on other investigations, so that such disclosure cannot be regarded as an automatic requirement of Article 2 : the core question is, rather, whether the requisite access of the public or of the victim ’ s relatives may be provided for at other stages of the available procedures ( McKerr, § 129). The applicants did not comment on disclosure to the inquest by the PSNI Legacy Support Unit or on the access they had to the inquest, and they did not suggest that any future post-inquest proceedings would not involve further disclosure, public scrutiny and their full involvement.
66. It is true that this Court identified certain procedural deficiencies before the inquest had even taken place in the Hugh Jordan case. However in contrast to the domestic law at issue in that case, since the Supreme Court judgment of May 2011, domestic law required the present inquest to comply with the procedural requirements of Article 2. The Coroner set out to do so and any future proceedings must be conducted in a way which complies with Article 2 of the Convention.
67. In all of the above circumstances, the complaints under Article 2, other than the complaint about investigative delay of itself, are inadmissible as being premature and/or on the ground that domestic remedies have not yet been exhausted within the meaning of Article 35 § 1 of the Convention. The associated complaint under Article 13 must also therefore be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. The Court notes that, should the applicants be dissatisfied in the future with the progress or outcome of those domestic procedures, it would be open to them to re-introduce these complaints under the substantive and procedural aspects of Article 2 of the Convention.
68. However, the consequence of the referral of the case to the DPP in 2012, with the potential that entails for, inter alia, further proceedings of a criminal and/or disciplinary nature, is that the investigative process into the death of Mr Hemsworth has still not finished 15 years later. The Court considers that the complaint under Article 2 about investigative delay of itself is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible, along with the related complaint under Article 13 of the Convention.
69. Turning to the merits of the admissible complaint, it is well ‑ established that Article 2 requires an investigation to begin promptly and to proceed with reasonable expedition ( for example, the judgments of this Court of 4 May 2001 concerning Northern Ireland, paragraph 37 above ), and this is required quite apart from any question of whether the delay actually impacted on the effectiveness of the investigation. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts ( Hugh Jordan, cited above, §§ 108 and 136- 1 40).
70. The Court considers it striking that Mr Hemsworth died in January 1998 and that the inquest hearing proper did not begin until May 2011, more than 13 years thereafter and that further important procedural steps are outstanding.
71. During this period there were a number of delays which the Court considers attributable to the authorities and which are not justified. There was a 16 month period between the Attorney General communicating the need for an inquest and the first pre-inquest hearing (February 2000-June 2001) : greater speed should have been imposed given the initial mistaken registration of the death. Thereafter the inquest was adjourned in June 2001 pending submissions on this Court ’ s judgments of 4 May 2001 concerning Northern Ireland and then pending Pearse Jordan ’ s inquest. The Coroner did not hear preliminary matters until February 2003. While the applicants delivered a list of witnesses in December 2004, the Coroner did not rule on this until after a series of significant and relevant domestic judgments ( Amin, Middleton, McKerr and, finally, Jordan and McCaughey in 2007). It took a further year after that last judgment ( March 2007 ) to hold a pre-inquest hearing ( March 2008 ). The delay between March 2008 and September 2009 was explained by the Coroner ’ s refusal, later overturned, to call RUC witnesses. There was a further delay between the date initially fixed for the second inquest and the date it began (January 2010-May 2011).
72. The Court also considers it important to highlight the reason for one of the longest periods of delay namely, from May 2001 to March 2008. This period was characterised by legal actions by the applicants ’ and others which were demonstrably necessary to drive forward their inquests and to ensure the clarification of certain important aspects of coronial law and practice including, notably, the rights of the next-of-kin. In particular, the principles flowing from this Court ’ s judgments of 4 May 2001 were applied in domestic law, not through legislation, but through a series of complex and overlapping domestic judicial review applications. The entry into force of the HRA in 2000 also brought with it further questions of relevance to coronial law and, notably, its application to investigations into pre-HRA deaths, a key issue not finally resolved until the judgment of the Supreme Court in McCaughey of May 2011 which overturned the earlier judgment of the House of Lords in McKerr (paragraphs 3 6 -4 3 above). The present inquest was therefore adjourned for long periods pending the outcome of highly relevant litigation initiated by others and by the first applicant (who was required twice to litigate to obtain legal aid).
73. However, this manner of proceeding inevitably extended significantly the length of investigations and inquests into security force killings in Northern Ireland and this was aptly described by the Court of Appeal in one of Hugh Jordan ’ s numerous judicial review actions about the death of his son, Pearse Jordan (paragraph 4 2 above). The fact that it was necessary to postpone the inquest so frequently and for such long periods pending clarifying litigation demonstrates that the inquest process itself was not structurally capable at the relevant time of providing the applicants with access to an effective investigation which would commence promptly and be conducted with due expedition (the above-cited Jordan and McKerr judgments at §§ 138 and 155, respectively).
74. Whatever the individual responsibility, or lack of responsibility, of those public officials involved in the investigation process, these delays cannot be regarded as compatible with the State ’ s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths, in the sense that the investigative process, however, it be organised under national law, must be commenced promptly and carried out with reasonable expedition. To this extent, the foregoing finding of excessive investigative delay, of itself, entails the conclusion that the investigation was ineffective for the purposes of Article 2 of the Convention. There has, accordingly, been a violation of Article 2 under its procedural aspect by reason of excessive investigative delay. The Court also concludes that no separate issue arises under Article 13 of the Convention in that respect ( Hugh Jordan v. the United Kingdom, cited above, §§163-165).
II. APPLICATION OF ARTICLE 46 OF THE CONVENTION
75. Article 46 of the Convention provides:
“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.”
76. The Court has found that the investigative delay in the present case breached the procedural guarantees of Article 2 of the Convention. It so doing, it considered the inquest process itself was not structurally capable throughout the relevant period of time of providing the applicants with access to an investigation which would commence promptly and be conducted with due expedition (paragraphs 7 2 -7 4 above). The Court recalls its findings under Article 46 as regards investigative delay in its above-cited McCaughey judgment. While the delay in the present case was not as long as that at issue in the McCaughey case, the present inquest delay was excessive and its root causes similar to those in McCaughey.
77. The Court recalls that it falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance ( Abuyeva and Others v. Russia, no. 27065/05, § 243, 2 December 2010 ). However, as the Court found in its McCaughey judgment, this compliance must involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
78. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
79. The applicants requested an award in respect of non-pecuniary damages. While they did not request a particular sum, they submitted psychiatric reports which underlined the impact on them of the death of Mr Hemsworth and which, in the case of Mrs Hemsworth, attested to the fact that the inquest delay in particular was a significant factor in the persistence of her problems of depression and anxiety.
80. The Government did not comment on this aspect of the applicants ’ claim.
81. The Court awards the applicants EUR 20,000 in total plus any tax that may be chargeable to the applicants in respect of non-pecuniary damage, to be converted into pounds sterling at the rate applicable on the date of settlement.
82. The applicants claimed 14,287.32 pounds sterling (“GBP”) in legal costs and expenses before the Court, submitting relevant vouchers and bills. The Government considered this amount to be excessive and proposed GBP 8,000.
83. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to these criteria, the documents in its possession and the total hours of work claimed, the Court considers it reasonable to award the sum of EUR 1 1 ,000, plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable on the date of settlement.
84. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Declares by a majority the complaints under Articles 2 and 13 concerning investigative delay admissible and the remainder of the application inadmissible;