FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41197/98

by Edward Boyd and John McCormack McCOLM

against the United Kingdom

The European Court of Human Rights ( Fourth Section) sitting on 29 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Sir Nicolas Bratza ,

Mr G. Ress ,

Mr I. Cabral Barreto ,

Mr V. Butkevych ,

Mrs N. Vajić ,

Mr J. Hedigan , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 3 February 1998 by Edward Boyd and John McCormack McCOLM   against the United Kingdom and registered on 13 May 1998 under file no. 41197/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are brothers. They are British nationals, born in 1951 and 1952 respectively and living in Ayrshire, Scotland. They are not represented before the Court. The facts of the case, as submitted by the applicants, may be summarised as follows.

A. Particular circumstances of the case

On 9 July 1989 the applicants’ father, James McColm , was knocked down by a taxi. He died in hospital on 11 July 1989, without having regained consciousness.

On 2 August 1989 the applicants met with the Procurator Fiscal who was investigating their father’s death. On 11 September 1989 the Procurator Fiscal wrote to the applicants informing them that he was entering a verdict of “no proceedings”.

On 17 November 1989 the applicants obtained from the police the “Abstract of Road Occurrence Report”, containing the names and addresses of two witnesses to the accident, namely the taxi-driver and a fourteen-year-old boy, and three police officers who attended the scene after the accident. The applicants’ solicitor took statements from the first two witnesses, but the applicants were unable to understand how the accident had taken place.

On 13 December 1989 the Lord Advocate wrote to the first applicant’s Member of Parliament as follows:

“I have carefully considered the report and statements which were submitted by the Procurator Fiscal in relation to the death of James McColm and I do not consider it appropriate to instruct a Fatal Accident Inquiry in this particular case. The matter has been fully investigated by the police and the Procurator Fiscal and all eye witnesses have been precognosced by the Procurator Fiscal.

I understand that the Procurator Fiscal spent some considerable time with your constituent’s brother, Mr John McColm , and his wife, outlining to them the evidence of the various witnesses. The Procurator Fiscal also provided Mr John McColm with a list of the names and addresses of those witnesses to enable him to interview them personally if he wished to do so. Mr McColm was also permitted to read the autopsy report.

As you will appreciate the police report to the Procurator Fiscal and the Procurator Fiscal’s report to the Crown Office are confidential and, accordingly, your constituent cannot be provided with copies of these documents. ...”

On 19 January 1990 the applicants again met with the Procurator Fiscal, who refused the applicants’ request for a Fatal Accident Inquiry, and also refused to grant the applicants access to all the documentation relating to their father’s death. On 21 February 1990 the applicants obtained the post-mortem report relating to their father’s death.

On 2 March 1990 the Lord Advocate again wrote to the first applicant’s Member of Parliament:

“I understand that you telephoned ... enquiring as to the reasons for confidentiality attaching to the reports which your constituent, Mr Edward McColm , has requested copies of.

There is a long and unbroken line of judicial authority that reports by the police to the Procurator Fiscal and communications between the Procurator Fiscal and the Crown Office are very highly confidential and the Scottish Courts would only order their production to a third party where it is necessary for the ends of justice in view of some great and overwhelming necessity. In the circumstances of this case I cannot see that there is any great necessity. Indeed ... nothing material has been withheld .”

On 28 June 1990 the applicants were informed by their solicitor that “in view of all the facts, lack of witnesses and the policy of the authorities”, it would not be possible for them to proceed with a civil action or force a Fatal Accident Inquiry.

On 16 June 1992 an adjournment debate about the issues surrounding the applicants’ father’s death was held in the House of Commons. On behalf of the Government, the Parliamentary Under-Secretary of State for Scotland explained that:

“In the case of road traffic fatalities, a fatal accident inquiry would normally be held only if it was thought that there was a need to inquire into such matters as the layout of the road, the appropriateness of any speed limits at the locus, or the adequacy of street lighting. In other words, do the circumstances of the accident give rise to concerns about road safety? Where it is considered that the driver of a vehicle was at fault to the extent that his driving was thought to have been careless or reckless, the appropriate step is for criminal proceedings to be instituted. Where criminal proceedings are not appropriate and no issues of road safety are raised, a fatal accident inquiry will not usually be held, especially where the investigations by the police and fiscal have already clearly established the circumstances leading up to the accident.”

He continued:

“No material information was withheld from the family. They remained dissatisfied, however, because they had not been shown the police report or the fiscal’s report. The police report was simply a summary of the evidence, the details of which had already been provided to the family.

The fiscal’s report was accompanied by the statements of the witnesses but was itself an assessment of that evidence and a recommendation by the fiscal to Crown counsel as to whether a fatal accident inquiry should be held. The fiscal is clearly entitled to make an assessment of the evidence and offer his opinion to Crown counsel on a confidential basis. ...”

On 4 November 1996 the second applicant wrote to the Procurator Fiscal requesting the official police sketch of the scene of the accident and photographs taken by the police. The Procurator Fiscal replied on 20 November 1996, enclosing a copy of the sketch plan and advising the applicant to contact the police directly in respect of the photographs. On 13 January 1997 Strathclyde Police informed the applicant that the photographs had been disposed of. On 3 July 1997 the first applicant wrote to the newly-appointed Lord Advocate again requesting an inquiry into his father’s death. The Lord Advocate replied on 27 August 1997 stating that he had read the papers in the case and agreed with the decision not to carry out a Fatal Accident Inquiry.

B. Relevant domestic law and practice

The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (“the 1976 Act”) places an obligation on the Lord Advocate to hold an inquiry into any death in custody or following an accident at work, unless the circumstances of the death have been established in the course of criminal proceedings. As regards other deaths, it is at the discretion of the Lord Advocate to decide whether it is expedient in the public interest to hold an inquiry into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or occurred in circumstances such as to give rise to serious public concern.

In practice, the Procurator Fiscal investigates all sudden, suspicious, accidental and unexplained deaths, and informs the Crown Office where there are suspicious circumstances, where it appears that a crime has been committed and there is a possibility that proceedings might be instituted, where the circumstances point to suicide, or where there has been a request by an interested person that a Fatal Accident Inquiry be held. Crown Counsel then decides on behalf of the Lord Advocate whether the circumstances of the death give rise to serious public concern such as to justify the holding of an inquiry.

COMPLAINTS

The applicants submit that under the 1976 Act the Lord Advocate has absolute discretion as to what information should be released. They complain that the Lord Advocate’s decision not to carry out a Fatal Accident Inquiry and to deny them access to all the information obtained in the course of the investigation into their father’s death in effect rendered it impossible for them to bring civil proceedings against the taxi driver who knocked their father down, or against the Crown Office concerning a defective or impaired investigation into their father’s death, in breach of Articles 6 § 1 and 13 of the Convention.

THE LAW

1. The applicants complain about the decision not to carry out a Fatal Accident Inquiry and the denial to them of access to information obtained in the course of the investigation into their father’s death. They invoke Article 6 § 1 of the Convention, which states:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...”

The Court notes, at the outset, that there is no right under Article 6 § 1 to require the public authorities to bring criminal proceedings against a third party or to carry out an investigation into an allegedly suspicious death. Article 6 § 1 does, however, guarantee a right of access to a court, that is, the right to institute proceedings before a court in civil matters (see, for example, the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, p. 1502, § 50).

The Court is prepared to accept that, if the decision not to release to the applicants the documents in question had, in fact, prevented them from instituting or succeeding in civil proceedings against the driver of the car which killed their father, this may have been to deny them access to court in breach of Article 6 § 1 (see, mutatis mutandis , the McGinley and Egan v. the United Kingdom judgment of 9 June 1998, Reports 1998-III, p. 1360, § 86).

However, the Court notes that the applicants were provided with the names and addresses of the witnesses to the accident, from whom they took statements, and a copy of the post-mortem report. If these had indicated that the driver had been negligent, then the applicants would have been free to issue proceedings. It would appear that no information was withheld from the applicants which might have assisted them in establishing negligence on the part of the driver. According to the Parliamentary Under-Secretary of State for Scotland, speaking in the House of Commons on 16 June 1992, the police report contained only a summary of the evidence, the details of which had already been provided to the applicants, and the Procurator Fiscal’s report was an assessment of that evidence and a recommendation as to whether a Fatal Accident Inquiry should be held. In these circumstances, given that the applicants were provided with sufficient information to enable them to contact witnesses and thus collect for themselves any evidence there might have been of negligence on the part of the driver, it cannot be said that they were denied access to court.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

2. In addition, the applicants complain of a breach of Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in this 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.”

Having regard to its decision on Article 6 § 1, the Court finds that there is no need to examine the complaint under Article 13, since the requirements of the latter Article are less strict than, and are here absorbed by, those of the former (see, amongst many other examples, the Sporrong and Lönnroth judgment of 23 September 1982, Series A no. 52, p. 32, § 88).

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President