9. Memorandum from the Committee on
the Administration of Justice (CAJ)
INTRODUCTION
CAJ have been active on the issue of inquests
for many years. Our focus has predominantly related to deaths
caused by the security forces or where there have been allegations
of collusion but we have also provided advice and assistance to
others.
The starting point for our critique of the system
has been the extent to which it does not conform to international
human rights standards, both the European Convention on Human
Rights, the International Covenant on Civil and Political Rights
and other "soft law" international standards. In the
mid and late 1990s we were approached by a number of families
who had just completed their inquests and were at a loss as to
how to proceed. We advised them to take their cases to the European
Court of Human Rights arguing that the UK had violated the procedural
aspect of Article 2 of the Convention guaranteeing an adequate
ex post facto investigation of a killing involving the
state. We lodged the cases in Strasbourg and acted as lawyers
for the families before the Court, culminating in the successful
judgments of Kelly et al v UK, Shanaghan v UK and more
latterly McShane v UK.
The cumulative effect of these judgments in
our view obliges the UK government to completely overhaul the
way in which these cases are investigated should they occur in
the future. The judgments are of course not restricted to the
issue of inquests. They involve the police, the DPP, and the police
complaints system. However, it is equally clear that major change
must occur within the coronial system in Northern Ireland in order
to ensure that it complies with Article 2, which of course is
now domestic legislation by way of the Human Rights Act.
In this context we were disappointed to see
no mention of Northern Ireland in the Call for Evidence from the
Joint Committee. While the Inquiry relates to deaths in custody
we believe that any such inquiry should also look to deaths caused
by the state, particularly in the context of the adequacy of investigations.
Our comments relate primarily to the procedural aspect of Article
2 and while they are grounded in the experience of Northern Ireland,
we believe they have relevance for England and Wales.
It is also of course the case that there have
been and continue to be prison deaths in Northern Ireland. Inquests,
which we have observed into a number of these deaths, suggest
that prison authorities in Northern Ireland are no better equipped
at dealing with vulnerable prisoners than their counterparts in
Britain.
INTERPRETATION OF
THE RIGHT
TO LIFE
PROVISIONS
In the cases of Kelly v United Kingdom[83],
Shanaghan v United Kingdom[84],
Jordan v United Kingdom[85]
and McKerr v United Kingdom, [86]the
European Court of Human Rights took the opportunity to clarify
the exact parameters and criterion required for an investigation
to comply with Article 2 of the Convention.
In the "landmark judgment(s)" [87]the
Court made specific reference to various provisions of UN "soft
law"[88]
and in summary concluded that the UK had breached Article 2 on
the procedural ground on the basis of the:
— Lack of independence of the police
investigation, which applies to police killings (Jordan, McKerr),
army killings (Kelly), and cases of alleged collusion (Shanaghan).
— The refusal of the DPP to give reasons
for failing to prosecute.
— Lack of compellability of witnesses
suspected of causing death.
— Lack of verdicts at the inquest.
— Absence of legal aid and non-disclosure
of witness statements at the inquest.
— Lack of promptness in the inquest
proceedings.
— The limited scope of the inquest.
— Lack of prompt or effective investigation
of the allegations of collusion.
In addition to this:
What form of investigation will achieve those
purposes may vary in different circumstances. However, whatever
mode is employed, the authorities must act of their own motion,
once the matter has come to their attention. They cannot leave
it to the initiative of the next of kin either to lodge a formal
complaint or to take responsibility for the conduct of any investigative
procedures[89].
The next-of-kin must be adequately involved
in the investigative proceedings also to the extent that it safeguards
his or her legitimate interests[90].
Ineffective securing of evidence will hamper the establishment
of the cause of death or the person responsible and, thus, would
constitute a breach of article 2[91].
SCOPE OF
THE INQUEST
The purpose of an Inquest is to inquire into
unexpected, unexplained or suspicious death so that the facts
may be ascertained and the public assured that any necessary action
by the authorities is promptly taken to ensure that similar avoidable
deaths do not occur in the future.[92]
Rule 15 of the 1963 Rules sets out the precise
ambit of the Inquest[93]:
The proceedings and evidence at the 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 the death.
It would appear on a cursory reading of the
foregoing, that the scope for determination of the circumstances
surrounding a death is quite broad. However, Rule 15 has been
greatly constrained by two factors.
Firstly, Rule 15 is subject to the provisions
of Rule 16 which provides that:
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.
Secondly, the construction of the word "how"
has been construed in a very narrow form by the judiciary, to
exclude the possibility of a true appraisal of the question.
In the Northern Ireland Courts in In Re:
Bradley and Larkens Application[94]
Justice Carswell stated:
The word "how" means "by what
means" rather than "in what broad circumstances".
The enquiry must focus on matters directly causative of death.
. .It should not embark on a wider inquiry relating to the background
circumstances of the death; it is not its function to provide
the answers to all the questions, which the next of kin may wish
to raise.
Thus, it is apparent from the foregoing cases
that a full consideration of the broad circumstances in which
the deceased came by his/her death is firmly held to be not within
the competence of the Coroners Court[95].
In the decision of Shanaghan v United Kingdom[96],
the Court specifically criticised the fact that the scope of the
examination of the Inquest excluded the family's concern of alleged
collusion by security force personnel in the targeting and killing
of Patrick Shanaghan:
The domestic courts appeared to take the view
that the only matter of concern to the inquest was the question
of who pulled the trigger, and that, as it was not disputed that
Patrick Shanaghan was the target of loyalist gunmen, there was
no basis for extending the enquiry any further into issues of
collusion. Serious and legitimate concerns of the family and the
public were therefore not addressed by the inquest proceedings.
In case of McKerr v United Kingdom[97]:
Serious concerns arose from these three incidents
as to whether police counter-terrorism procedures involved an
excessive use of force, whether deliberately or as an inevitable
by-product of the tactics that were used. The deliberate concealment
of evidence also cast doubts on the effectiveness of investigations
in uncovering what had occurred.
Therefore, the Court concluded that, notwithstanding
the existence of a criminal trial running parallel with the Inquest,
Article 2 may require a wider consideration of the possibility
of excessive use of force by the security forces. The Court went
beyond the dicta of the domestic Courts by looking to the underlying
objective of the inquest, that of re-assuring the public and the
members of the family as to the lawfulness of the killings. It
concluded that due to the fact such a purpose had not been accomplished
by the criminal trial, the positive obligations inherent in Article
2 required an adequate procedure whereby such doubts could be
addressed[98].
In cases like that of McCann v United Kingdom[99]
it is clear that issues relating to the planning and control of
the operation which leads to the death must be included within
the scope of the inquest. Indeed, the Coroner for Belfast in the
Jordan case has now accepted, as a matter of principle that such
matters lie within the proper scope of the inquest[100].
The investigation must focus upon (a) not only
those who were allegedly directly responsible for the death, but
(b) the planning and organisation of the state agency or operation
that provided the context in which the deaths took place and any
systemic deficiencies therein[101]
Where appropriate it must also indicate those who were responsible[102].
ADJOURNMENT/DELAY
Great concern has been expressed over the inordinate
delays in the commencement of Inquest proceedings in Northern
Ireland[103].
This is particularly disturbing in cases involving allegations
of systemic deficiencies which remain unaddressed for such a long
period of time.
The Coroner must decide whether or not to hold
an inquiry without delay and the inquiry must be held "as
soon as practicable" after the coroner has been notified
of the death[104].
As a matter of practice, inquests in Northern
Ireland do not commence, until the Coroner is informed by the
police or the DPP, that they may open proceedings. This practice
effectively nullifies the applicability of the provisions of the
Coroners Rule in that the Coroner is powerless to control the
timing of the Inquest. This has a significant effect on the efficiency
and promptness of the process.
By way of contrast, in England the inquest is
opened and then readjourned[105]
where criminal prosecution is imminent. In this way, the Inquest
will be in advance of ultimate decision on prosecution. The British
practice reflects the underlying purpose of the rules by making
it clear that the Coroner is in control and the police can be
summonsed to give account for themselves if there is an unreasonable
delay.
Whereupon a criminal charge is brought on account
of the death, the Inquest in Northern Ireland is postponed until
the conclusion of all criminal proceedings, including appeal[106].
In contrast, In England and Wales, adjournment is only until the
conclusion of the trial.
In the decision of Jordan v United Kingdom[107],
the Court stated at Paragraph 108 that:
A requirement of promptness and reasonable expedition
is implicit in this context (see the Yasa v Turkey judgment of
2 September 1998, Reports 1998-IV, pp 2439-2240, §§
102-104; Cakici v Turkey cited above, § 80, 87 and
106; Tanrikulu v Turkey, cited above, § 109; Mahmut Kaya
v Turkey, no. 22535/93, [Section I] ECHR 2000-III, §§
106-107). It must be accepted that there may be obstacles or difficulties
which prevent progress in an investigation in a particular situation.
However, 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.
In this decision the Court also refer to Paragraph
9 of the United Nations Principles on the Effective Prevention
and Investigation of Extra-Legal, Arbitrary and Summary Executions[108]
which states inter alia that:
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 . . . (emphasis added)
In Shanaghan v United Kingdom[109]
the Court were highly critical of the delay in the proceedings:
The inquest opened on 26 March 1996, more than
four and a half years after Patrick Shanaghan's death. The Government
explained that the delay in the RUC sending the file to the Coroner
on 14 January 1994 resulted from their heavy criminal workload.
The Court does not find this a satisfactory explanation for failure
to carry out a transfer of documents for an important judicial
procedure. No explanation, beyond unspecified further enquiries,
has been forthcoming for the delay after the transfer of the file.
Once the inquest opened, it proceeded without delay, concluding
within a month. In the circumstances, the delay in commencing
the inquest cannot be regarded as compatible with the State's
obligation under Article 2 of the Convention to ensure that investigations
into suspicious deaths are carried out promptly.
COMPELLABILITY
Rule 9(2) of the Coroners (Practice and Procedure)
Rules 1963[110]
is an exception to the general rule that all persons who are competent
to give evidence at an inquest are compellable to do so. Under
this rule a person "suspected of causing the death or has
been charged or is likely to be charged with an offence related
to the does not have to appear."[111]
The position in Northern Ireland with regard
to the non-compellability of key witnesses was specifically criticised
in the decision of Jordan v United Kingdom[112]
at Paragraph 127:
In inquests in Northern Ireland, any person suspected
of causing the death may not be compelled to give evidence (Rule
9(2) of the 1963 Coroners Rules, see paragraph 68 above). In practice,
in inquests involving the use of lethal force by members of the
security forces in Northern Ireland, the police officers or soldiers
concerned do not attend. Instead, written statements or transcripts
of interviews are admitted in evidence. At the inquest in this
case, Sergeant A informed the Coroner that he would not appear.
He has therefore not been subject to examination concerning his
account of events. The records of his two interviews with investigating
police officers were made available to the Coroner instead (see
paragraphs 19 and 20 above). This does not enable any satisfactory
assessment to be made of either his reliability or credibility
on crucial factual issues. It detracts from the inquest's capacity
to establish the facts immediately relevant to the death, in particular
the lawfulness of the use of force and thereby to achieve one
of the purposes required by Article 2 of the Convention (see
also paragraph 10 of the United Nations Principles on Extra-Legal
Executions cited at paragraph 90 above).
The Court also makes reference to the "soft
law" UN United Nations Principles on the Effective Prevention
and Investigation of Extra-Legal, Arbitrary and Summary Executions[113],
Principle 10 of which states that:
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.
Rule 9(2) was subjected to similar criticism
in the case of McKerr v United Kingdom[114]
and Kelly v United Kingdom[115].
In the domestic case of In Re: Jordans Application[116],
McKerr J. at Page 6, stated that "the decision clearly called
for the removal of the exemption in Rule 9(2), therefore".
In light of the European Court of Human Rights,
the Lord Chancellor has since amended Rule 9. The amended Rule
9 reads as follows:
9(1) No witness at an inquest shall be obliged
to answer any question tending to incriminate himself or his spouse
9(2) Where it appears to the coroner that
a witness has been asked such a question, the Coroner shall inform
the witness that he may refuse to answer the question
As is apparent from above, the old rule pertaining
to the privilege against self-incrimination, which had always
functioned adequately in England and Wales to protect the rights
of the potential accused, have been retained. While we welcome
the changes in relation to non-compellability, we are concerned
that the continued existence of the right against self-incrimination
will undermine the changes in that police officers and soldiers
will refuse to answer any questions relating to the actual killings
or indeed the planning of the security operation which led to
the deaths.
We believe there are alternative ways in which
the rights of soldiers and police officers can be protected while
still ensuring the integrity of the fact finding nature of the
inquest. For instance, soldiers giving evidence to the Saville
inquiry have been guaranteed that their evidence will not be used
against them in any subsequent trials. We believe that this approach
could be adopted in relation to article 2 inquests.
INDEPENDENCE OF
THE INVESTIGATION
In both a domestic and European context the
need for independence of investigation has been addressed and
the need highlighted[117].
In the cases of and Guluc v Turkey[118]
and Ogur v Turkey[119],
it was stated that:
For an investigation into alleged unlawful killing
by State agents to be effective, it may generally be regarded
as necessary for the persons responsible for and carrying out
the investigation to be independent from those implicated in the
events.
This means not only a lack of hierarchical or
institutional connection but also a practical independence. [120]
This creates two problems in terms of Article
2 compliance in Northern Ireland. First, it is clear that the
police cannot carry out investigations into killings for which
police officers were, or were suspected of being responsible.
The creation of the Police Ombudsman goes some way to solving
this problem. However in light of the Kelly judgment, it is also
clear that the police cannot investigate army killings. The Police
Ombudsman does not resolve this problem because her powers are
limited to the police. She has no power to investigate the army.
This applies equally to the situation regarding deaths in prison.
In our view it is clear that investigations by the prison service
will in no way satisfy the independence requirement of Article
2. It is also our view that a police investigation will similarly
fall foul of Article 2 requirements.
Second, Coroners have in the past and continue
to rely on the police investigation to obtain relevant evidence.
Under Section 11(1) of the Coroners (Northern Ireland) Act 1959
the Coroner is charged with making "such investigations as
may be required to enable him to determine whether or not an inquest
is necessary". The police act on behalf of the Coroner to
obtain relevant evidence. In theory, the coroner may instruct
the police, however,
It may not be appropriate for the Coroner to
give such instructions where, for example, the death is the subject
of a murder inquiry. Coroners are usually content not to interfere
in any criminal investigation of that type, and to rely instead
on the senior investigating officer advising on the progress being
made by the police. [121]
In the case of Ergi v Turkey[122]
a violation of Article 2 was found where the public prosecutor
investigating the death of a girl during an alleged clash showed
a lack of independence through his heavy reliance on the information
provided by the gendarmes implicated in the incident. Thus, excessive
reliance on the police or other government bodies during an investigation
may result in a finding of a breach of the State's Article 2 obligations.
It is therefore clear that the Coroner can no
longer rely on the police to conduct investigations in these cases.
VERDICTS
In England and Wales verdicts are available
to Coroners and inquest juries. These include the possibility
of an unlawful killing verdict and a range of other possible verdicts.
Northern Ireland was curtailed in this regard
in 1981 when the verdict was abolished and replaced with "findings".
Therefore it is not open to a jury in Northern Ireland to bring
a verdict of "unlawful killing" in the case of a death
by a member of the security forces[123].
Rule 15 of the 1963 Rules pertaining to Northern
Ireland sets out the precise ambit of the Inquest:
The proceedings and evidence at the inquest
shall be directed solely to ascertaining the following matters,
namely:
(d) who the deceased was;
(e) how, when and where the deceased came
by his death;
(f) the particulars for the time being required
by the Births and Deaths Registration (Northern Ireland) Order
1976 to be registered concerning the death.
In the Northern Ireland Courts in In Re:
Bradley and Larkens Application[124]
Justice Carswell stated:
The word "how" means "by what
means" rather than "in what broad circumstances".
The enquiry must focus on matters directly causative of death
. . . It should not embark on a wider inquiry relating to the
background circumstances of the death; it is not its function
to provide the answers to all the questions which the next of
kin may wish to raise . . . I am of the opinion that what was
contemplated by the word "findings" in the 1980 Rules
was just such a brief encapsulation of the essential facts, and
that juries should be encouraged to confine their findings to
statements of that nature.
EUROPEAN JURISPRUDENCE
The European Court of Human Rights has specifically
indicated that an investigation of the violation of the right
to life must have the capacity to make findings indicating those
responsible. In Kelly v United Kingdom[125],
the Court stated at Paragraph 96 that:
The investigation must also be effective in the
sense that it is capable of leading to a determination of whether
the force used in such cases was or was not justified in the circumstances
(eg Kaya v. Turkey judgment, cited above, p. 324, § 87) and
to the identification and punishment of those responsible
Notwithstanding that the European Court specifically
condemned the inquest procedure for not permitting any verdict
or findings the government and the Lord Chancellor have failed
to amend the Rules to enable a Coroner or his jury to bring a
verdict.
PUBLIC INTEREST
IMMUNITY CERTIFICATES
Public Interest Immunity Certificates were specifically
criticised in the case of McKerr v United Kingdom[126]
in which the Court stated that:
[t]he Reports in any event dealt with the evidence
of obstruction of justice, which was relevant to the wider issues
thrown up by the case. The Court finds that the inquest was prevented
thereby from reviewing potentially relevant material and was therefore
unable to fulfil any useful function in carrying out an effective
investigation of matters arising since the criminal trial.
The fundamental issue at hand here is, essentially,
the balancing of a set of competing interests both in the name
of the public good; on one hand that of national security and
on the other hand, the need for full disclosure of evidence to
support the proper administration of justice. It would appear,
all too often, that the scales have tipped too far the one way,
ie national security. It does not serve the public interest when
documents, which may be relevant to revealing some systemic deficiencies
within the police force, are purposively withheld from determination
at Inquest.
In its "package of measures" which
it submitted to the Committee of Ministers in Strasbourg in response
to the judgments the UK government argued the judge in relevant
cases (and presumably the Coroner in inquests) should decide on
what should be subject to the PII where the Minister was unsure.
In recent hearings in Northern Ireland however lawyers for the
police and army have refused to disclose unredacted documents
to the Coroner. This in our view is simply unacceptable.
The balance should be in favour of disclosure.
In the event that a PII is issued or being considered the situation
in relation to Coroners should be the same as obtains in criminal
cases under the judgment of ex parte Wiley.
INTERNATIONAL SOFT
LAW STANDARDS
The relevant "soft law" standards
applicable to the area of Inquest systems, particularly with regard
to controversial deaths at the hands of security forces, are contained
in the Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials[127]
and the United Principles on the Effective Prevention and Investigation
of Extra-Legal, Arbitrary and Summary Executions[128]
and the UN Manual on the Effective Prevention and Investigation
of Extra-legal, Arbitrary and Summary Executions[129].
The standards contained therein are not strictly legally binding.
However, they represent an important yardstick by which a State
may judge its adherence to the generally recognised principles
applicable in the conduct of an investigation into a suspicious
death.
These principles were specifically referred
to and given credence by the European Court of Human Rights in
the recent cases of Jordan v United Kingdom[130],
McKerr v United Kingdom[131],
Kelly v United Kingdom[132]:
and Shanaghan v United Kingdom[133].
This would certainly add weight to the binding force of these
principles, in light of the fact that they have been applied through
the mechanism of the European Court.
CONCLUSION
The judgments from the European Court of Human
Rights in May 2001 marked a watershed in the development of Article
2 jurisprudence in Europe. In Northern Ireland we believe they
should mark the effective demise of the discredited manner in
which deaths caused by the state are investigated. A new independent
and effective mechanism to inquire into Article 2 deaths is required.
We believe the most effective way of dealing
with such cases in the future may well be the creation of a single
entity to investigate such cases. It appears to us that, drawing
on some of the thinking done by the Luce Review team, a new level
of coronial court might be established to deal with controversial
cases while either the old system or a more streamlined administrative
model might deal with the less controversial cases. Obviously
there would need to be safeguards built into the system to ensure
decisions as to which level a particular case has been directed
to could be subject to appeal. This new higher level of court
could, in our view, be tasked with investigating controversial
deaths from the beginning, working in tandem with the family and
if necessary external investigators, and also ultimately with
the DPP. Powers and resources could be allocated accordingly.
Public hearings would remain a central aspect of the investigation
of these cases.
One further matter also needs to be addressed
which is the failure of the DPP to provide reasons in Article
2 cases. In our view and in the view of the European Court of
Human Rights such cases are "crying out for an explanation"
of the failure to prosecute.
That specific criticism and the others made
by the Court in the European judgments need to be met in full.
— The investigations into article 2
killings need to be independent, carried out either by the Police
Ombudsman, another independent investigator for army killings
or investigators appointed by the Coroner.
— The DPP need to give reasons for
failing to prosecute in Article 2 cases.
— Witnesses suspected of causing death
must be compellable and the right against self-incrimination needs
to be addressed in order to ensure the integrity of the hearing.
— Verdicts must be possible at inquests.
— Legal aid must be available and witness
statements must be made available in advance of the hearing.
— Inquest hearings must be held promptly.
— The scope of the inquest must be
such as to allow a broad inquiry into the circumstances surrounding
the death.
— If PIIs are to be used they should
be narrowly drawn and should apply in inquest courts as they do
in ordinary criminal courts.
9 October 2003
83 Kelly v UK, Application No 30054/96, Judgment of
4 May 2001. Back
84
Shanaghan v UK, Application No 37715/97, Judgment of 4 May 2001. Back
85
Jordan v UK, Paragraph 95, Application No 24746/94, Judgment of
4 May 2001. Back
86
McKerr v UK, Application No 28883/95, Judgment of 4 May 2001. Back
87
Amnesty International News Report, AI Index EUR 45/010/2001. See
also comments of Nuala O'Loan (Irish Times October 11 2001
page 8) this judgment "will be the greatest challenge to
most existing police complaints system(s) in Europe". "Recent
events in London, with the Lawrence case, and in Ireland, with
the Abbeylara case, have shown that there is a demand for openness,
transparency and independence in the investigation of allegations
of misconduct by the police. I believe this can lead to an enhanced
police service." Back
88
See Kelly v UK, Application No 30054/96, Judgment of 4
May 2001. Reference was made to The United Nations Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials
(UN Force and Firearms Principles) (adopted on 7 September 1990
by the Eighth United Nations Congress on the Prevention of Crime
and the Treatment of Offenders) Paragraph 21, 22. United Nations
Principles on the Effective Prevention and Investigation of Extra-Legal,
Arbitrary and Summary Executions (adopted on 24 May 1989 by the
Economic and Social Council Resolution 1989/65), Paragraph 9,
10-17. The "Minnesota Protocol" (Model Protocol for
a legal investigation of extra-legal, arbitrary and summary executions,
contained in the UN Manual on the Effective Prevention and Investigation
of Extra-legal, Arbitrary and Summary Executions), Section B "Purposes
of an inquiry". Back
89
Kelly v UK, Paragraph 94, Application No 30054/96, Judgment of
4 May 2001. See also Ilhan v Turkey, Paragraph 63, ECHR
2000-VII, Judgment of 27 June 2000. Back
90
Gulec" v Turkey, Paragraphs 82, Reports 1998-IV, Judgment
of 27 July 1998 (where the father of the victim was not informed
of the decisions not to prosecute); Ogur v Turkey, Paragraphs
92, Application No. 21954/93, ECHR 1999-III. Back
91
Salman v Turkey, Paragraph 106, ECHR 2000-VII, Judgment of 27
June 2000, Tanrikulu v Turkey, Paragraph 109, ECHR 199-I, Judgment
of 8 July 1999. Back
92
See British Irish Rights Watch, Current Developments
in Inquests in Britain and Ireland: Record of Proceedings, (June
1992). Back
93
The equivalent English provisions are S.11(5) of the Coroners
Act 1988 and Rule 84, Coroners (Practice and Procedure)
Rules 1988. Back
94
[1994] NI 279. See also Hutton LCJ in Re Ministry of Defence's
Application, [1994] NI 279, 307, Simon Brown LJ in R v
HM Coroner for Western District of East Sussex, ex p Homber (1994)
158 JP 357,369. Back
95
Thus in the McKerr case the judge held that the Coroner
was not entitled to attempt to ally allegations of a "shoot
to kill" policy by examining the "broad circumstances"
in which the deceased had met their deaths (unreported QBD (Crown
Side), 11 July 1994). Back
96
Paragraph 111, Application No 37715/97, Judgment of 4 May 2001. Back
97
Paragraph 137, Application No 28883/95, Judgment of 4 May 2001. Back
98
Id. Back
99
Series A No 324, Judgment of 27 September 1995. Back
100
See Treacy, Seamus, Article 2 and the Future of Inquests in
Northern Ireland: A Practitioner's Perspective, (Transcript
from CAJ and British Irish Rights Watch, Inquest Seminar dated
23 February 2002). Back
101
Andronicou and Constantinou v Cyprus, Reports 1997-VI,
McCann and Others v the United Kingdom, Series A No 324, Judgment
of 27 September 1995. Back
102
Jordan v United Kingdom, Application No 24746/94, Judgement
of 4 May 2001, Ogur v Turkey, Paragraph 88, Judgment
of 20 May 1999, Application No 21594/93. Back
103
For example, The McKerr Inquest was not opened for six
years and was adjourned in 1988 pending appeal. English practice
has also been subject to such criticism. See also British Irish
Rights Watch, Current Developments in Inquests in Britain and
Ireland: Record of Proceedings, (June 1992) which alleges
that the average delay in Inquest proceedings is 10 years. Back
104
Coroners (Practice and Procedure) (Northern Ireland) Rules
1963, Rule 3. In England and Wales this requirement is under Coroners
Act 1988, s. 8(1). Back
105
Coroners (Practice and Procedure) Rules 1988. Back
106
Coroners (Northern Ireland) Act 1959, Section 13(1) and
(6). Back
107
Application No 24746/94, Judgment of 4 May 2001. See also
Kelly v United Kingdom, Application No 30054/96, Judgment
of 4 May 2001, Paragraph 97, McKerr v United Kingdom, Paragraph
114 Application No 28883/95, Judgment of 4 May 2001 Yasa v
Turkey, Paragraphs 102-104, Reports 1998-IV, Judgment of 2
September 1998, C"akici v Turkey, Paragraphs 80, 87,
ECHR 1999-IV, Tanrikulu v Turkey, Paragraph 109, ECHR 1999-I,
Judgment of 8 July 1999, Kaya v Turkey, Paragraph 106-107,
ECHR 2000-III. Back
108
Adopted on 24 May 1989 by the Economic and Social Council Resolution
1989/65. Back
109
Paragraph 119-120, Application No 37715/97, Judgment of 4 May
2001. Back
110
Rule 9(2) has since been repealed by the Lord Chancellor. Back
111
The formulation of this Rule is in line with the recommendations
of the Brodrick Committee which recommended that "where a
person is suspected of causing the death he should not be called
and put on oath unless he so desires and should not be cross examined".
It is noteworthy that this recommendation was not followed with
regard to the Coroner's practice in England and Wales. Back
112
Application No 24746/94, Judgment of 4 May 2001. Back
113
Adopted on 24 May 1989 by the Economic and Social Council Resolution
1989-65. Back
114
Paragraph 144. Application No 28883/95, Judgment of 4 May 2001.
Sergeant M and officers B and R were therefore not subject to
examination concerning their account of events. Their statements
were made available to the Coroner instead. This did not enable
any satisfactory assessment to be made of either their reliability
or credibility on crucial factual issues. Back
115
Paragraph 121, Application No 30054/96, Judgment of 4 May 2001.
"At the inquest in this case, none of the soldiers A to X
appeared. They have therefore not been subject to examination
concerning their account of events. The records of their statements
taken in interviews with investigating police officers were made
available to the Coroner instead (see paragraphs 16 to 23 above).
This does not enable any satisfactory assessment to be made of
either their reliability or credibility on crucial factual issues". Back
116
As yet unreported. See Justice Kerr, Article 2 and the Future
of Inquests in Northern Ireland, (Transcript from CAJ and
British Irish Rights Watch, Inquest Seminar dated 23 February
2002). Back
117
See also Basic Principles on the Use of Force and Firearms
by Law Enforcement Officials, Principle 23 "persons affected
by the use of force or firearms or their legal representatives
shall have access to an independent process, including a judicial
process" and Principles on Effective Prevention and Investigation
of Extra-Legal, Arbitrary and Summary Execution. Principle
11 "an investigation must be independent and not governed
by interests of any agency whose actions are the subject of the
scrutiny". Back
118
Judgment of 27 July 1998, Reports 1998-IV, Paragraph 81-82. Back
119
Application No 21954/93, ECHR 1999-III, Paragraph 91-92. Back
120
See for example the case of Ergi v Turkey, Judgment
of 28 July 1998, Reports 1998-IV, Paragraph 83-84 where the public
prosecutor investigating the death of a girl during an alleged
clash showed a lack of independence through his heavy reliance
on the information provided by the gendarmes implicated in the
incident. Back
121
Leckie & Greer in Coroner's Law and Practice in Northern Ireland
90 (Northern Ireland: SLS Legal Publications) (1998). Back
122
Paragraph 83-84, Judgment of 28 July 1998, Reports 1998-IV. Back
123
The Gibraltar Inquest into the deaths of Mairead Farell, Daniel
McCann and Sean Savage was at liberty to return such a verdict
in light of the fact that the Inquest was conducted in Gibraltar
under Gibraltar Law. Back
124
[1994] NI 279. See also Hutton LCJ in Re Ministry of Defence's
Application, [1994] NI 279, 307, Simon Brown LJ in R v
HM Coroner for Western District of East Sussex, ex p Homber
(1994) 158 JP 357, 369. Back
125
Application No 30054/96, Judgment of 4 May 2001. See also Jordan
v UK, Paragraph 107, Application No 24746/94, Judgment of
4 May 2001, McKerr v United Kingdom, Paragraph 113, Application
No 28883/95, Judgment of 4 May 2001, Ogur v. Turkey,
Paragraph 88, Judgment of 20 May 1999, Application No 21594/93. Back
126
Paragraph 151, Application No 28883/95, Judgment of 4 May 2001.
Public Interest Immunity Certificates were also referred to in
the case of Shanaghan v United Kingdom, Application No
37715/97, Judgment of 4 May 2001 at Paragraph 118. However, because
no certificate was issued in this case, the Court concluded that
"(t)here is therefore no basis for finding that the use of
these certificates prevented examination of any circumstances
relevant to the death of the applicant's son". Back
127
Adopted on 7 September 1990 by the Eighth United Nations Congress
on the Prevention of Crime and the Treatment of Offenders. Back
128
Adopted on 24 May 1989 by the Economic and Social Council Resolution
1989/65. Back
129
United Nations Manual on the Effective Prevention and Investigation
of Extra-legal, Arbitrary and Summary Executions, UN Doc ST/CSDHA/12,
UN Sales No 91.IV.1 (1991). The "UN Manual" provides
model methods of investigation, purposes, and procedures of an
inquiry and processing of the evidence. (Chapter III, 16), requires
that all investigations be characterised by competence, thoroughness,
promptness, and impartiality, (Chapter III, 16), the scope of
the inquiry, the terms of reference should be framed neutrally
to avoid suggesting a predetermined outcome, (Chapter III, 18).
In cases involving an allegation of government involvement, the
Minnesota Protocol recommends the establishment of a commission
of inquiry (Chapter III, 21/22), Such commissions require extensive
publicity, public hearings, and the involvement of the victims'
families, (Chapter III, 21). Back
130
Paragraph 87-92, Application No 24746/94, Judgment of 4 May 2001. Back
131
Paragraph 144, Application No 28883/95, Judgment of 4 May 2001. Back
132
Paragraph 121, Application No 30054/96, Judgment of 4 May 2001. Back
133
Application No 37715/97, Judgment of 4 May 2001. Back
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