FOURTH SECTION

CASE OF MCGRATH v. THE UNITED KINGDOM

( Application no. 34651/04 )

JUDGMENT

STRASBOURG

27 November 2007

FINAL

27/02/2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mc G rath v. the United Kingdom ,

The European Court of Human Rights (Fourth Section) , sitting as a Chamber composed of:

Mr J. Casadevall , President, Sir Nicolas Bratza , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr J. Šikuta , Mrs P. Hirvelä , judges, and Mr T.L. Early , Section Registrar ,

Having deliberated in private on 6 November 2007 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 34651/04) 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 a n Irish national, Mr Michael Mc G rath (“the applicant”), on 10 September 2004 .

2 . The applicant was represented by Madden & Finucane, solicitors practising in B elfast . The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office, London .

3 . The applicant alleged that there had been no adequate investigation into allegations of collusion and/or involvement by security forces in his being seriously injured , nor any effective remedy for the same. H e invoked Articles 2 and 13 of the Convention.

4 . By a decision of 6 March 2007 the Court declared the application admissible.

5 . The applicant and the Government each filed further wri tten observations (Rule 59 § 1), to which they each responded with further written comments (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ) .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1922 and lives in Granemore , County Armagh .

A. The attack on the applicant and the initial investigation

7 . At about 10.40 p.m. , shortly after closing time, on 6 June 1976, a police officer in the Royal Ulster Constabulary (“RUC”) drove a car, stolen by RUC Reserve Constable Laurence McClure, up to the Rock Bar, a public house. The applicant was leaving the bar at that time. He was shot twice in the stomach by McClure, who then placed a 10lb gelignite bomb against the door of the pub. The detonator exploded but the bomb failed to explode. At the later trial a reserve police constable , William McCaughey , stated that shots were fired by his companions at the injured man on the ground and then he fired a number of shots through the window of the bar. Bullet strike marks were later found around the darts board inside the bar, where there had been seventeen people. No-one else was physically injured.

8 . The applicant was taken to hospital in an ambulance and police attended the scene, sealing off the area while an army technical officer examined the explosive device and ensured that it was in a safe condition. A Scene of Crime Officer examined the scene, took possession of material associated with the bomb and a gun recovered from a burnt out car found approximately one mile away, which police linked to the attack. Photographs of the bar were taken and maps prepared.

B. The investigations concerning McCaughey and Weir

9 . The investigation did not close and became active again in 1978, when a Catholic priest Father Hugh Murphy was abducted by loyalist paramilitaries intending to use him as a hostage vis-à-vis the IRA. In the course of the investigation, the police arrested McCaughey, who, in the course of questioning, revealed his part in the abduction of the priest and in a variety of other loyalist paramilitary incident s . McCaughey made allegations incriminating himself and police officer McClure in respect of the Rock Bar attack. McClure was arrested and admitted involvement. Two further serving police officers, Ian Mitchell and David Wilson, also admitted involvement in, or prior knowledge of , the attack on the bar. McCaughey admitted firing the shot which wounded the applicant.

10 . The applicant was aware that charges were pending against four police officers. He had been contacted by the police in April 1980 and summoned to appear in Belfast Crown Court on 23 April 1980 . He was subsequently advised of various date changes and then that the case was postponed and that he would be contacted. In fact the hearing took place on 30 June 1980 . The applicant had not been informed and learned about the outcome on the radio.

11 . Three men, McCaughey, McClure and Mitchell , faced charges of attempted murder of the applicant, wounding the applicant with intent contrary to section 18 of the Offences against the Persons Act 1961, attempted murder of the persons inside the bar, causing an explosion contrary to section 2 of the Explosives Substances Act 1883, possession of explosive substances with intent to endanger life or cause serious injury and possession of firearms and ammunition with intent. The three officers pleaded not guilty to the charges of attempted murder; McClure and Mitchell pleaded not guilty to wounding the applicant. The Director of Public Prosecutions (“the DPP”) entered a nolle prosequi in respect of those charges which accordingly were not proceeded with. No reasons were given for this decision. The only person facing a charge concerning the applicant was McCaughey, who received a term of seven years for wounding him. McClure was sentenced to two years ' imprisonment for causing an explosion, possession of an explosive substance with intent and possession of firearms and ammunition with intent, all sentences suspended for three years. Another RUC officer, David Wilson, was charged with withholding information contrary to section 5(1) of the Criminal Law ( Northern Ireland ) Act 1967, based on the fact that he had been aware of the attack beforehand and had not taken any steps to prevent it.

12 . With the exception of McCaughey, the other officers received suspended prison terms. In sentencing, Lord Lowry stated inter alia :

“... It does not seem realistic to believe that after all that they have endured – some with their careers in ruins, others with their careers in jeopardy- that they require much by way of deterrent or by way of reform, and no proper sentence which I pass will make an impression on terrorists while other members of the police force are no doubt already embarrassed, sufficiently embarrassed and shocked by what has happened in these cases and been seen to happen to their colleagues. ... I must remember that whatever sentence is just it would follow that it would be imposed on a different and lower scale from that appropriate to terrorists, no matter whichever side, whose aim is to achieve their political ends by violence and to attack the very fabric of society.”

13 . It had been advanced by the defence and accepted by the trial judge that McCaughey had only aimed to shoot the applicant in the legs and had done so.

14 . McClure had also been facing charges in relation to his involvement in the attack on Donnelly ' s Bar, Silverbridge , in 1975 in which three people had been killed (see application no. 32457/04, Brecknell v. the United Kingdom ). These charges were later dropped.

15 . In the course of the investigation in 1978, McCaughey made revelations giving rise to investigations in eleven specific cases, some of which were linked in terms of the identities of those involved, the modus operandi or by virtue of the ballistic examinations of weapons used. Nine suspects were arrested in total, including five police officers , and all were eventually charged with offences.

16 . One of those implicated was a police officer John Weir who was named as having been involved in the murder of a shopkeeper called Strathearn in Ahoghill in April 1977: he was convicted for that murder in June 1980 and sentenced to life imprisonment. The Government stated that both McCaughey and Weir refused to name the two loyalist paramilitaries also involved with them in the murder unless they received immunity from prosecution. The police and prosecuting authority took the decision prior to the trial not to enter into any process of bargaining with Weir and McCaughey. While both were approached by the police after their convictions to see if at that stage they would give evidence against the loyalist paramilitaries, each again refused to do so unless there was something in it for themselves. The Government stated that during the period in which Weir was detained he was interviewed on a large number of occasions. At no time did he implicate himself or others in any offence other than the Strathearn murder.

C . The Weir allegations and the response of the authorities

17 . On 1 February 1993 John Weir was released from prison on licence. In January 1999 , he made a statement to a journalist alleging RUC and Ulster Defence Regiment ("UDR") collusion with loyalist paramilitaries from the Portadown area in the mid-1970s. This statement was published in the Sunday Times newspaper in March 1999. It was obtained by the Patrick Finucane Centre, a human rights non-governmental organisation in Derry (“the Centre”).

18 . John Weir ' s statement made detailed allegations about security force collusion with loyalist paramilitaries in a series of incidents. He alleged inter alia that RUC Reserve Constable Laurence McClure had told him that the murder of the Reavey family members was carried out by Robert McConnell, a member of the UDR, Laurence McClure, Johnny Mitchell, another Reserve Constable in the RUC and McClure ' s brother who was not a member of the security forces. The statement also made links between this incident and other attacks allegedly carried out by members of the security forces, both RUC and UDR, and loyalist paramilitaries. This group used the farmhouse in Glennane owned by James Mitchell, a RUC reservist, as a base from which to carry out attacks on Catholics and nationalists. Other attacks allegedly included the murder of Colm McCartney and Sean Farmer at a bogus vehicle checkpoint in August 1975 (see application no. 34575/04); the attack on Donnelly ' s Bar in which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were killed (see application no. 32457/04); and the murder of Joseph, Barry and Declan O ' Dowd and wounding of Barney O ' Dowd (see application no. 34622/04). Weir also linked these attacks to the Dublin and Monaghan bombings in which 33 people were killed in the Republic of Ireland .

19 . On or about 10 June 1999, RTE, an Irish television channel, broadcast a television programme that contained allegations of security force involvement in a number of deaths, including that of Trevor Brecknell. Weir made allegations on that programme that members of the RUC and UDR were directly involved in the attack on Donnelly ' s Bar. A BBC Spotlight programme produced a similar documentary dealing with these allegations.

20 . These allegations attracted considerable attention on both sides of the Irish border and became the subject of police investigation in both jurisdictions. The Government stated that the police investigation in Northern Ireland was focussed on determining whether Weir ' s allegations should be assessed as sufficiently credible to require a full investigation. They obtained from the journalist an edited transcript of the interview with Weir. While his whereabouts were unknown to the RUC, Weir met with senior Irish police officers at the Irish Embassy on 15 April 1999. A copy of his statement was provided by the Garda to the RUC, along with a further statement made by Weir to another journalist dated 3 February 1999. The police analysed the available materials and sought to identify the personalities to be interviewed. It became apparent that some had died and that others, living abroad, could not be traced. A series of seven interviews were conducted, under cautions, between July and December 2001, of those individuals central to Weir ' s account who could be traced. No charges were preferred. The interviews followed the format of Weir ' s allegations being put to the interviewee for his or her response. The predominant response was denial of any involvement and claims that Weir had been untruthful. No admissions were made by any interviewee. Interviews were also conducted with less central personalities and with police officers involved in interviewing Weir in 1978. The latter stated that Weir had not mentioned the matters now being alleged.

21 . Meetings were held regularly with RUC counterparts in the Republic of Ireland . The RUC co-operated also with the judicial inquiry established in the Republic of Ireland into the Dublin and Monaghan bombings (see the description of the inquiry in the case of Brecknell referred to above). Amongst matters about which the RUC team provided information to the inquiry was ballistics information which linked some of the weapons used to more than one incident. In February 2000 a substantial report was compiled by the RUC for the Garda dealing with Weir ' s allegations. It profiled Weir and dealt inter alia with a description of the 1978 investigation into McCaughey, Weir and others. It concluded that the investigation would continue but that his credibility was in doubt. According to the Government, despite inquiries being conducted, Weir ' s whereabouts could not be traced. This report was not disclosed as the investigation was continuing. An internal RUC report dated 27 February 2001 concluded that it would be necessary to interview Weir before any view could be finalised in respect of the credibility of his allegations: such interview was not possible as his whereabouts were not known. The report noted the absence of any previous mention of the allegations before 1999 and that much of what he said was hearsay and speculation. Enquiries made of the British Embassy in Nigeria (where he had a known address) and the criminal intelligence service and others failed to locate Weir. Contact was made with the Garda and the secretariat of the Inquiry into the Dublin and Monaghan bombings without positive result.

22 . The Serious Crime Review Team (“SCRT”) was established in March 2004, with responsibilities including the review of all historical murders by way of case assessment for evidential and investigative opportunities.

23 . Unlike the other case (Brecknell, Reavey, O ' Dowd and McCartney, cited above), the Rock Bar case was not referred to the SCRT. This was because it was not a murder case and there had been four convictions. Nonetheless because of connections with other cases, the case was also referred to the Historical Enquiry Team (HET). The HET director of Investigations, Detective Chief Superintendent James of the London Metropolitan Police Force, took over personal supervision of the investigation which has progressed through the first three of five stages of the HET process (collection of all relevant material; assessment of the investigations to date; review of evidence, with intelligence and open and non-police sources, together with a meeting with the families of the victims of the attack). As a number of investigative opportunities were identified and to be followed up, the case was to continue to be processed by HET, which had been put in touch with Weir by the Centre. The Government submitted that if any evidence of police involvement in the murders was found, the Office of the Police Ombudsman for Northern Ireland would then become involved. The Government have provided recent information that Weir finally agreed to meet with the HET in Dublin ; he refused, however, to make a written statement or to give evidence in court.

There has been contact between the police and the applicant, as well as with the Centre acting on behalf of a number of concerned families. In particular, there were meetings in September 2002 with Detective Chief Inspector Paterson, and a meeting with the Chief Constable in June and August 2004; in May 2006, Detective Chief Superintendent James met the applicant together with the person who owned the bar at the time; and there has also been extensive correspondence with the families or their representatives.

D. Application for judicial review concerning the inadequacy of the investigation

See Brecknell , cited above (§§ 39-41) .

E. Reports of the Independent Commissions of Inquiry ( Republic of Ireland )

See Brecknell , cited above (§§ 42-49) .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

24 . The applicant complained that the United Kingdom had failed to provide an effective official investigation into the circumstances of the shooting in which he was seriously injured after allegations were made in 1999 by John Weir as to RUC involvement, invoking Article 2 of the Convention which provides:

“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.”.

A. The parties ' submissions

25 . The parties ' submissions essentially repeat those made in the Brecknell case ( cited above , §§ 54-59 , 60-64).

B. The Court ' s assessment

26 . The Court refers to its statement of principles and analysis as set out in Brecknell (cited above, §§ 65-81). For the same reasons it concludes that the investigative response to Weir ' s allegations lacked the requisite independence in its early stages when under the control of the RUC. There has been, in that respect alone, a violation of Article 2 of the Convention .

II . A LLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

27 . In view of its findings above, the Court finds that it is not necessary to examine separ ately the complaint under this A rticle .

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

28 . 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.”

A. Damage

29 . The applicant claimed non-pecuniary damage for the suffering and distress caused by the State ' s failure to conduct an effective official investigation into the circumstances of the shooting .

30 . The Government submitted that even if there was a breach of the procedural obligation it would not be appropriate to apply the same scale as in cases of procedural breaches in the immediate aftermath of a use of lethal force . They considered a finding of a violation should be held in itself to constitute just satisfaction. Alternatively, any award should be modest.

31 . The Court has found that the national authorities failed in their obligation to provide a properly independent investigative response in the initial stages following the allegations made by John Weir. In the circumstances, it considers that the applicant sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making an assessment on an equitable basis, the Court awards the sum of EUR 5,000.

B. Costs and expenses

32 . The applicant claimed GBP 10,298 . 29 for solicitors ' costs, inclusive of value added tax (VAT) for this application.

33 . The Government submitted that the overall solicitors ' charging rate (with an uplift of 50% for care and conduct) was excessive, and half the amount was appropriate. The overall hours claimed were also excessive given that similar issues arose in the four other cases considered at the same time. They proposed no more than GBP 20,000 for solicitors ' costs in total for all four cases together.

34 . The Court recalls that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction) , nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX).

35 . The Court has already awarded EUR 29,000 for solicitors ' costs in the Brecknell case (§ 92). Having regard to the fact that only the initial presentation of facts in this case required separate treatment from the lead application, it awards the applicant EUR 5,000, which figure is inclusive of VAT.

C. Default interest

36 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 2 of the Convention due to the lack of independence of the RUC during the initial stages of the investigation begun in 1999 ;

2. Holds that it is not necessary to examine separately the applicant ' s complaint under Article 13 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into pounds sterling at the rate applicable at the date of settlement;

(i) in respect of non-pecuniary damage, EUR 5,000 (five thousand euros);

(ii) in respect of costs and expenses, EUR 5,000 (five thousand euros);

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 27 November 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

T.L. Early J osep Casadevall Registrar President