Joint Committee On Human Rights Nineteenth Report


6  Investigation of deaths involving the security forces

Duty to investigate allegations of torture or inhuman or degrading treatment in Northern Ireland

134. Under Article 12 of UNCAT there is a duty of prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed. In its Concluding Observations, the Committee Against Torture expressed concern that the investigation of deaths by lethal force in Northern Ireland had in a number of cases failed to meet the UK's international human rights obligations.[175] It recommended that the UK should take steps to review investigations of deaths by lethal force in Northern Ireland that remained unresolved.[176]

IN RE MCKERR

135. In a series of cases against the UK heard between 2001 and 2003, McKerr,[177] Shanaghan,[178] Jordan,[179] Kelly,[180] McShane, and Finucane,[181] all of which concerned deaths in Northern Ireland which were allegedly either caused, or involved collusion by, the security forces, the European Court of Human Rights found the UK to be in breach of the obligation under Article 2 ECHR (the right to life) to institute independent, prompt and thorough investigations of the deaths. The CAJ represented a number of the applicants in these cases. In respect of several of the cases, the Government has stated that it does not intend to conduct a new inquiry into the deaths, since too great a time has now elapsed for a new inquiry to be conducted.

136. This decision was challenged before the domestic courts in In re McKerr,[182] where the House of Lords found that the rule that the Human Rights Act does not apply retrospectively, meant that there was no domestic law obligation on the State to institute a new inquiry into a pre-October 2000 death, despite the ruling of the Strasbourg Court.

137. We and our predecessor Committee have registered our concern on a number of occasions about the delays in implementing the ECtHR judgements in respect of these cases, and about the impact of the In re McKerr judgment. Most recently we drew attention to them in a progress report on implementation of Strasbourg judgments.[183] We reiterate those concerns here.

INQUESTS IN NORTHERN IRELAND

138. The Strasbourg judgments in the cases referred to above also criticised the inquest system in Northern Ireland as being insufficient to comply with the Article 2 duty on the state to investigate unnatural deaths. Inquests in Northern Ireland may not reach verdicts, such as "unlawful killing": they issue findings. As the previous JCHR said in its report on deaths in custody,[184] some widening of the scope of these findings has resulted from the Northern Ireland Court of Appeal judgment in In Re Jordan,[185] which held that, though coroners in Northern Ireland remain unable to reach a verdict of "unlawful killing", inquests may consider the background circumstances of a death and make findings of fact on the actions of agents of the state. Aideen Gilmore of the Committee on the Administration of Justice told us that there remained uncertainty as to whether this broader scope was applicable in relation to current inquests into deaths occurring before 1998, and that there was a danger that a two-tier system of inquests would develop, depending on whether they related to deaths before or after 1998.[186]

139. The 2003 Luce Report[187] made a number of recommendations for reform of the coroners system in England, Wales and Northern Ireland, including recommendations bearing on the capacity of inquests to fulfil the obligations on the state to comply with the Article 2 ECHR investigatory duty. In response the Government produced a position paper,[188] and a draft Coroners Bill is currently expected to be published this spring.

140. We note that the NIHRC published a report in February 2006 examining the extent to which the inquest system in Northern Ireland meets the state's Article 2 obligations in respect of deaths resulting from use of lethal force.[189] That report stated that future inquests in Northern Ireland would need to be "significantly different creatures from their predecessors", and also noted that implementation of the Luce recommendations could meet many of the requirements of the ECtHR judgments.[190] Administrative reorganisation and modernisation of the coronial system in Northern Ireland is under way following consultation by the Government,[191] but this process of reform does not directly address the compliance of the system with Article 2 ECHR. We would hope that the draft Coroners Bill expected shortly will seek to align the coronial system in Northern Ireland with that in England and Wales, as recommended by the Luce Report, particularly in relation to the fulfilment of the Article 2 duty.

THE INQUIRIES ACT 2005

141. At least two of the most controversial conflict-related deaths, that of the solicitor Patrick Finucane; and the loyalist Billy Wright, are to be the subject of inquiries under the Inquiries Act 2005. The Inquiries Act provides a new legal framework for public inquiries. During the passage of the Inquiries Bill, the previous JCHR reported its view that inquiries held under the Bill would be insufficiently independent to satisfy the requirements of Articles 2 and 3 ECHR.[192] In particular, it was concerned that independence was undermined by ministerial powers:

  • to bring an inquiry to an end before the publication of its report;
  • to issue restriction notices limiting attendance at the inquiry, or limiting the disclosure or publication of evidence or documents provided to the inquiry;
  • to withhold publication of the inquiry's report, unless the duty of publication is specifically allocated to the chair of the inquiry;
  • to withdraw funding from an inquiry which the Minister believes to be operating outside its terms of reference.[193]

142. There is also concern that the Inquiries Act allows for private hearings, and the Secretary of State for Northern Ireland has indicated that much of the Finucane inquiry would be likely to be held in private, because of national security considerations.[194] We remain to be convinced that in these and other controversial and sensitive cases inquiries held under the Inquiries Act will discharge the UK's responsibilities under UNCAT and the ECHR to hold effective investigations into deaths by use of lethal force in Northern Ireland.

THE HISTORICAL ENQUIRIES TEAM

143. The Police Service of Northern Ireland (PSNI), on the initiative of the Chief Constable, has recently established an Historical Enquiries Team, to investigate unsolved deaths related to the conflict in Northern Ireland, between 1968 and the conclusion of the Good Friday Agreement of 1998. The head of the team has described its purpose as to "offer answers and a greater level of resolution to families, and to identify and explore any remaining or new evidential opportunities that exist." One of the HET's investigations teams will be staffed by officers from external police forces, and will inquire into cases where independence from the PSNI is seen to be necessary. The other is to be staffed by serving and former officers the PSNI.

144. Shaun Woodward MP told us that the team had been allocated £32million and would be given "every tool available" so that it could bring closure to families of victims,[195] and the Chief Constable of the PSNI said that it would operate under the "principle of maximum disclosure". While the team would consider any new lines of inquiry in relation to any of the 2,000 or so unresolved deaths, Sir Hugh Orde assessed that the effectiveness of the team's work would mainly be achieved by providing information to families rather than through resulting prosecutions. We welcome the establishment of the Historical Enquiries Team, which we consider will play an important part in enabling people in Northern Ireland to come to terms with the Province's recent history, thus improving the prospects for reconciliation in the years to come.


175   Concluding Observations, op. cit., para 4(f) Back

176   Concluding Observations, op. cit., para 5(k) Back

177   (2002) 34 EHRR 20 Back

178   App No 37715/97 Back

179   (2003) 37 EHRR 2 Back

180   App No 300054/96 Back

181   App No 29178/95 Back

182   [2004] UKHL 12 Back

183   Thirteenth Report of Session 2005-06, Implementation of Strasbourg Judgments: First Progress Report, HL Paper 133, HC 954, paras 10 and 16 to 18. We also recently considered the Article 2 ECHR procedural obligation in our consideration of the human rights compatibility of the Northern Ireland (Offences) Bill of this Session, following the withdrawal of the Bill: Seventh Report of Session 2005-06, Legislative Scrutiny: Fourth Progress Report, HL Paper 98, HC 829 Back

184   Third Report of Session 2004-05, Deaths in Custody, HL Paper 15-I, HC137-I, paras. 297-301 Back

185   [2004] NICA 30 Back

186   Qq 108, 120 Back

187   Death Certification in England, Wales and Northern Ireland, Report of a Fundamental Review, Cm 5831, 2003 Back

188   Reforming the Coroner and Death Certification Service, A Position Paper, Cm 6159, March 2004, Home Office Back

189   Investigating Lethal Force Deaths in Northern Ireland: the Application of Article 2 of the European Convention on Human Rights, Fiona Doherty and Paul Mageean, Northern Ireland Human Rights Commission, February 2006 Back

190   Ibid., p 20 Back

191   Modernising the Coroners Service in Northern Ireland: The Way Forward, Northern Ireland Court Service Back

192   The human rights compatibility of the Inquiries Bill, now the Inquiries Act 2004 is analysed in the Fourth Report of Session 2004-05, Scrutiny: First Progress Report, HL Paper 26, HC 224; and the Eighth Report of Session 2004-05, Scrutiny: Third Progress Report, HL Paper 47, HC 333 Back

193   IbidBack

194   Ev 145 Back

195   Q 230 Back


 
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