Interim Resolution ResDH(2005)20

Action of the Security Forces in Northern Ireland

(Case of McKerr against the United Kingdom and five similar cases)

Measures taken or envisaged

to ensure compliance with the judgments of the European Court of Human Rights

in the cases against the United Kingdom listed in Appendix III

(Adopted by the Committee of Ministers on 23 February 2005 at the 914th meeting of the Ministers ' Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

Having regard to the judgments of the European Court of Human Rights in the cases against the United Kingdom listed in Appendix III and forwarded to the Committee of Ministers for supervision of their execution once they had become final under Article 44 of the Convention;

Recalling that in all these cases the applicants complained of violations of their right to an effective investigation into the death of their next-of-kin at the hands of the police or armed forces in Northern Ireland or in circumstances giving rise to allegations of collusion between the security forces and the killers;

Whereas in all of these judgments the Court unanimously held that there had been a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of the applicants ' next-of-kin (these findings are summarised in Appendix III to this resolution);

Whereas in the McShane case the Court also held, unanimously, that there had been a failure by the State to comply with its obligations under Article 34 of the Convention;

Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;

Having invited the government of the respondent State to inform it of the mea s ures which have been taken in consequence of the judgments, delivered on 4 May 2001, 28 May 2002 and 1 July 2003, having regard to the United Kingdom ' s obligation under Article 46, paragraph 1, of the Conve n tion to abide by them;

Having satisfied itself that the government has paid the applicants the sums provided for in the judgments;

Whereas, from the outset of the Committee ' s examination of the present cases, the government of the respondent State has reiterated its commitment to abide by the Court ' s judgments in these cases in accordance with its obligations under Article 46, paragraph 1;

Whereas the government of the respondent State has provided the Committee with information about the general measures taken so far or envisaged to this effect (this information appears in Appendix I to this resolution);

Whereas the said government has also provided information in each of these cases regarding the issue of individual measures to erase the consequences of the violations found for the applicants (this information appears in Appendix II to this resolution);

General assessment of the Committee of Ministers

Welcomes the firm commitment of the government of the respondent State to abide by the judgments of the Court in the present cases;

Takes note with interest of the information provided by the government of the respondent State regarding the general measures taken so far or envisaged to comply with the judgments;

Notes nonetheless that certain general measures remain to be taken and that further information and clarifications are outstanding with regard to a number of other measures, including, where appropriate, information on the impact of these measures in practice;

Notes in this connection that the Committee ' s on-going assessment of measures taken so far or envisaged covers the range of issues referred to in the appended information, inter alia:

- “calling in” arrangements for police investigations;

- the role of the Serious Crimes Review Team;

- the possibility of judicial review of decisions not to prosecute;

- new practices with respect to the verdicts of coroners ' juries at inquests;

- developments regarding disclosure at inquests;

- legal aid for inquests under the previous ex gratia scheme;

- measures to give effect to recommendations following reviews of the coroners ' system;

- the Inquiries Bill intended to serve as a basis for a further inquiry in one of these cases;

Calls on the government of the respondent State rapidly to take all outstanding measures and to continue to provide the Committee with all necessary information and clarifications to allow it to assess the efficacy of the measures taken, including, where appropriate, their impact in practice;

Recalls that the obligation to take all such measures is all the more pressing in cases – such as these – where procedural safeguards surrounding investigations into cases raising issues under Article 2 of the Convention are concerned;

Notes the information provided by the government of the respondent State regarding individual measures to erase the consequences of the violations found in these cases for the applicants;

Recalls in this regard the respondent State ' s obligation under the Convention to conduct an investigation that is 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 and to the identification and punishment of those responsible” , and the Committee ' s consistent position that there is a continuing obligation to conduct such investigations inasmuch as procedural violations of Article 2 were found in these cases;

Calls on the government of the respondent State rapidly to take all outstanding individual measures in these cases and to keep the Committee regularly informed thereof;

Conclusions of the Committee of Ministers

DECIDES to pursue the supervision of the execution of the present judgments until all necessary general measures have been adopted and their effectiveness in preventing new, similar violations has been established and the Committee has satisfied itself that all necessary individual measures have been taken to erase the consequences of the violations found for the applicants,

DECIDES also to resume consideration of these cases, as far as individual measures are concerned, at each of its DH meetings, and, as far as outstanding general measures are concerned, at the latest within nine months from today.

Appendix I to Interim Resolution ResDH(2005)20

Information provided by the Government of the United Kingdom to the Committee of Ministers

on general measures taken so far or envisaged to comply with the European Court ' s judgments

The Government of the United Kingdom has provided the following information with respect to general measures taken so far or envisaged to comply with the European Court ' s judgments in the present cases. Furthermore, in order to demonstrate its firm commitment to abide by the judgments and to allow a transparent and open debate on these measures, the Government wishes to point out that the most recent memorandum prepared for the Committee of Ministers ' examination of the present cases (document CM/Inf/DH(2004)14rev2) was made public on 6 January 2005.

Independence of police investigators investigating an incident from the officers or members of the security forces implicated in the incident

Investigations into deaths allegedly caused by the police

- Police Ombudsman

Since November 2000, there has been an independent Police Ombudsman in Northern Ireland , established by virtue of the Police ( Northern Ireland ) Act 1998, with the power to investigate all complaints against the police, including deaths alleged to have been caused by police officers acting in the course of their duty. Where it appears that the conduct of a member of the police service may have resulted in the death of a person the Chief Constable is required, under section 55(2) of the Act, to refer the matter to the Police Ombudsman. The Ombudsman is an independent authority and has her own team of independent investigators. She can recommend criminal or disciplinary proceedings against police officers and may direct that disciplinary proceedings be brought where the Chief Constable refuses to do so. The Ombudsman does not adjudicate on guilt or punishment.

Where the Ombudsman considers that the report of the investigation indicates that a criminal offence may have been committed by a police officer, the Ombudsman is required to send a report, together with any appropriate recommendations, to the Director of Public Prosecutions, who carefully considers the evidence, information and recommendations of the Ombudsman. It is for the DPP to decide if a prosecution should be commenced; this decision is based on the application of the test for prosecution, namely whether there is sufficient, admissible evidence to afford a reasonable prospect of conviction and, if there is, whether prosecution is in the public interest. In all cases, the DPP informs the Ombudsman by letter of the decision taken and the reasons for it. The principles governing the giving of reasons for decisions not to prosecute, described below (see under “Public scrutiny ... ”), apply.

- “Calling-in” arrangements

In addition, under the Police Act 1996, where one police service may provide aid to another, the Chief Constable of the Police Service of Northern Ireland (PSNI) may request that an incident be investigated by officers from a police service from Great Britain . It is a matter for the professional judgment of the Chief Constable to decide if the assistance of another police service is required in an investigation, taking account of local knowledge, interpretation of any intelligence, or any specialised skills that may be required. When such assistance is required, an appropriate police service is identified in discussion with Her Majesty ' s Inspector of Constabulary.

Cases identified by the Chief Constable as potentially requiring the appointment of an external service are monitored and discussed with the Policing Board. Moreover, the Chief Constable, as a public authority within the meaning of the Human Rights Act 1998, would, under section 6(1) of the Act, be acting unlawfully if he acted in a manner incompatible with a Convention right. His decision whether or not to call in an outside force may accordingly be subject to judicial review.

Investigations into deaths allegedly caused by the armed forces

In accordance with the relevant legislation and the Queen ' s Rules, military law does not apply to certain criminal offences, including murder, manslaughter, genocide, aiding, abetting, counselling or procuring suicide and various other offences. In Article 2 cases, therefore, as a matter of law, it is not the military but the civil authorities that investigate and prosecute. Accordingly, investigations into deaths caused by members of the armed forces are carried out by the police, who are separate from the armed forces and who are subject to scrutiny by the Police Ombudsman. The police investigation is subject to the Chief Constable ' s discretion to ask that the incident be investigated by another police force.

Allegations of collusion involving members of the armed forces and the police

Where there is an allegation of collusion involving members of the armed forces and the police, the Chief Constable of the PSNI may use his above-mentioned powers to bring in an outside police force to investigate.

Steps taken in response to defects identified in police investigations

On 28 March 2003 , the Chief Constable of the PSNI established the Serious Crimes Review Team (SCRT), whose remit is “to review a number of unsolved major crimes, including murder and rape, where it is thought that new evidential leads may be developed”. More than 2000 cases of unresolved deaths are to be examined by the SCRT. If, as a result of this review, it appears that new evidence might come to light, reinvestigation of any of the present cases might follow. The passage of time remains an influencing factor in that it can inevitably affect the availability of witnesses, exhibits and documentation, but it cannot be used in itself as a bar to reinvestigation.

The work of the SCRT is painstaking and places significant demands on police resources. As a consequence the Government have been discussing with the PSNI how this work might be expanded to process greater numbers of unresolved deaths and to do so in a way that commands the confidence of the wider community.

Public scrutiny of and information to victims ' families on reasons for decisions of the Director of Public Prosecutions not to prosecute any officer in respect of relevant allegations

Judicial review of a failure to give detailed reasons for a decision not to prosecute in Article 2 cases would now be possible under the Human Rights Act 1998, based on the failure to conduct an Article 2-compliant investigation. This amounts to a claim of unlawfulness and already exists, independently of any further measures taken.

In addition, on 1 March 2002 the Attorney General tabled a statement in the House of Lords which recognised that there may be cases arising in the future where an expectation will arise that a reasonable explanation will be given for not prosecuting where death is, or may have been, occasioned by the conduct of agents of the State. The statement indicated that the Director of Public Prosecutions accepted that in such cases it would be in the public interest to reassure a concerned public, including the families of victims, that the rule of law had been respected by the provision of a reasonable explanation. The Director would reach a decision as to the provision of reasons, and their extent, having weighed the applicability of public interest considerations material to the particular facts and circumstances of each individual case.

A draft Code for Prosecutors in Northern Ireland was published for consultation in March 2004. Section 4.11 of the Code sets out the DPP ' s policy on the giving of reasons, which notes that in many cases the reason for non-prosecution is a technical one, lists the main interests at stake in striking a balance between the proper interest of victims, witnesses and other concerns, and reiterates almost verbatim the statement of the Attorney General referred to above. As regards the giving of reasons for not prosecuting where death is, or may have been, caused by state agents, this text clearly reflects the policy announced by the Attorney General in 2002 and is not subject to change. The final Code, like the drafts, will be public. It is intended that the final Code will be produced in spring 2005.

In accordance with a well developed doctrine in domestic law in the United Kingdom , if a public body states that it will follow a given policy, this creates a legitimate expectation that the body will follow that policy unless there exist compelling reasons not to do so. Judicial review of decisions not to prosecute in Article 2 cases would therefore be possible on the basis of the legitimate expectation arising out of the Attorney General ' s statement of 1 March 2002 , and will in future be possible on the basis of legitimate expectations arising out of the Code.

In addition, as regards information to victims ' families more generally, both the PSNI and the Police Ombudsman now have family liaison officers, whose duty is to keep in contact with a victim ' s family during the course of an investigation.

Role of the inquest procedure in securing a prosecution in respect of any criminal offence that may have been disclosed

The inquest provides a public forum for the investigation of a death. The inquest is heard in a courtroom open to the public. It is the practice of coroners to sit with a jury in inquests into the deaths of persons alleged to have been killed by the security forces (although this is not a statutory obligation). It is a statutory requirement under the Coroners Act ( Northern Ireland ) 1959 that the inquest determine who the deceased was and how, when and where he or she came to his or her death.

Under Article 6 of the Prosecution of Offences (Northern Ireland ) Order 1972, the coroner is required to send to the Director of Public Prosecutions a written report where the circumstances of any death appear to disclose that a criminal offence may have been committed. The report will include all the evidence before the coroner together with a full record of the proceedings. Upon receipt of such a report, the Director of Public Prosecutions for Northern Ireland considers the evidence then available to him to determine whether to prosecute. Such a report will either result in a prosecution or in the Director applying the new policy on the giving of reasons.

In addition, the House of Lords delivered judgment on 11 March 2004 in the Middleton case ( R v. Her Majesty ' s Coroner for the Western District of Somerset (Respondent) and another (Appellant) ex parte Middleton (FC) (Respondent) [2004] UKHL 10). T his judgment makes clear that in order to provide an Article 2-compliant investigation, an inquest is required, when examining “how” the deceased came by their death, to determine not only “by what means” but also “ in what circumstances ” the deceased came by their death. This means that inquests are now required to examine broader circumstances surrounding the death than was previously the case.

Following this judgment, the Court of Appeal in Northern Ireland found on 10 September 2004 in the case of Jordan ([2004] NICA 29 and [2004] NICA 30) that Rule 16 of the Coroners ' Rules for Northern Ireland could and must be read in such a manner as to allow the inquest to set out its findings regarding the contested relevant facts that must be determined to establish the circumstances of the death. This could be achieved either in the form of a narrative verdict or of a verdict giving answers to a list of specific questions asked by the coroner.

By way of example of the application of these principles in practice, the United Kingdom authorities have provided a copy of a verdict on inquest delivered in the County Court Division of Greater Belfast on 24 August 2004 , in which the jury made detailed findings of fact in response to a list of specific questions asked by the coroner.

Scope of examination of inquests

It is the duty of the coroner to decide on the scope of an inquest. The coroner is a “public authority" for the purposes of section 6(1) of the Human Rights Act 1998, and it is thus unlawful for him to act in a manner incompatible with the Convention rights. Accordingly, if an issue is now raised at an inquest which, under Article 2 of the Convention, ought to be the subject of investigation (such as an allegation of collusion by the security forces), it is the duty of the coroner to act in a manner compatible with Article 2 and in particular to ensure that the scope of the inquest is appropriately wide. The judgments of the European Court , as applied through the Human Rights Act, will thus allow inquest procedures which can play a role in securing a prosecution for any criminal offences that may have been revealed.

To ensure that coroners are fully aware of this duty, copies of four of the judgments have been circulated to all coroners in Northern Ireland . Moreover, training sessions for coroners have been organised both by the Judicial Studies Board for Northern Ireland and by the Home Office in London .

Compellability of witnesses at inquests

The Lord Chancellor has brought forward an amendment to the Coroners (Practice and Procedure) Rules ( Northern Ireland ) 1963 so that, in future, witnesses suspected of involvement in a death can be compelled to attend the inquest, although they cannot be compelled to give self-incriminating answers.

The Government considered whether to replace the protection against self-incrimination under the amendment to the Coroners Rules with a rule which required a witness to provide incriminatory answers but which prevented those answers from being adduced in evidence at the criminal trial. However, as the principal objective of the procedural requirements of Article 2 is to ensure that criminal conduct is identified with a view to prosecution, it seems that compelling the giving of self-incriminating answers which could not themselves assist in the bringing of any prosecution would go beyond the purposes of the Article 2 investigation. Moreover, if such answers were required to be given under compulsion in the public inquest proceedings, that would itself be likely to jeopardise the possibility of there being a fair trial of the state agents themselves, and so would actually have the effect of undermining the effectiveness of the Article 2 procedures in holding state agents to account for their conduct.

Disclosure of witness statements prior to the appearance of a witness at the inquest

A Home Office Circular of April 1999 dealing with deaths in police custody and deaths at the hands of the police has been implemented by the Chief Constable of the Royal Ulster Constabulary (now the PSNI) by a Force Order, issued under the Chief Constable ' s statutory authority to direct and control the Police Force under Section 33 of the Police Act (NI) 2000. While the Home Office Guidelines, on which the Force Order is based, are restricted to deaths in custody and deaths at the hands of the police, the Chief Constable has chosen to interpret the latter flexibly, so that the Force Order would apply, for example, to events such as those in the McShane case, where an army vehicle was ordered towards a barricade by a member of the police force.

As a result of the implementation of this circular, the Chief Constable normally will disclose to interested persons, including the family of the deceased, the statements sent to the coroner where the death occurred in police custody or where it resulted from the actions of a police officer acting in the course of his duty. The Chief Constable has followed this practice in all current cases relating to deaths caused by the security forces. The Chief Constable considers that he is obliged to provide to the coroner all statements concerning the death obtained by him in the course of an investigation, whether from police, security forces or civilian sources. Where he is also obliged to disclose statements to the next of kin or family, then the same situation pertains.

The application of the above practice is enforceable by judicial review, and has been enforced by the courts in Northern Ireland in the cases of McClory (judgment of the Queen ' s Bench division of the High Court of 8 January 2001 ) and Thompson.

As regards disclosure by the Ministry of Defence, it is the policy and practice of the Ministry of Defence to co-operate fully with all police inquiries. There are no circumstances in which the armed forces or the Ministry of Defence can avoid disclosure to the Chief Constable in the course of a criminal investigation. All relevant information and persons are made available to the police in the execution of their investigation. However, this is subject to the right of the Secretary of State for Defence, like other Government departments and agencies, to seek public interest immunity when disclosable information may be made available to other persons, the disclosure of which would cause harm to the public interest. This might take the form of damage to national security or the lives of individuals being threatened.

As witnesses, members of the armed forces are no different from any other government agent. The Ministry of Defence, on behalf of the armed forces, exercises its public interest duties in the same manner as any other government department. The assessment of the public interest in allowing the disclosure of witness statements by members of the armed forces is no different from that for any other witness.

As regards documents, before deciding whether to claim public interest immunity in respect of a document which is otherwise disclosable, the Secretary of State will have to balance the public interest in the administration of justice against the public interest in maintaining the confidentiality of the document of which the disclosure would be damaging to the public interest. He may decide to assert public interest immunity where he considers that disclosure would cause real damage or harm to the public interest. Where a claim for public interest immunity is made in an inquest and is challenged, it is for a court to decide where the balance lies between the interests of justice and, for example, the interests of national security. The Minister is never the final arbiter in relation to a claim for public interest immunity.

Public interest immunity certificates

Since the domestic proceedings described in the McKerr judgment of the European Court , there have been significant developments in the law and practice in relation to public interest immunity. First, since the 1994 case of R v Chief Constable of West Midlands, ex-parte Wiley , it has been clear that where a minister examines material which is subject to public interest immunity and considers that the overall public interest does not favour its disclosure, or is in doubt as to whether to disclose the information, then the minister should put the matter to the courts. It is therefore the courts, and not the executive, which determine whether a public interest immunity certificate is necessary.

Second, in December 1996, the Attorney General announced to Parliament changes in the Government ' s practice in relation to public interest immunity. In particular, the Government would no longer apply the division of claims into class and contents claims, but would in future focus on the damage caused by disclosure.

Although these changes were addressed to England and Wales , the Government has indicated that Ministers in the Northern Ireland Office have already applied the Wiley approach, and the new approach focusing on damage was also quickly adopted in Northern Ireland . Several examples of cases have been provided in which the claim of public interest immunity was at issue and in which the fairness of the trial was not found to be at risk. The approach taken was first to examine the necessity of the claim of public interest immunity and second to balance the competing interests of open justice and real damage to the public interest if full disclosure were made.

As regards the discharging of procedural obligations under Article 2 through inquests, the position on public interest immunity in respect of inquests has changed following the judgment of 20 January 2004 of the High Court in the judicial review case of McCaughey and Grew . It is now clear that the Police or Ministry of Defence are under a duty to disclose all documents to the coroner, and that it is then for the coroner to assess their relevance. At this stage the coroner will be aware of any public interest concerns that the Police or Ministry of Defence have in relation to the disclosure of the documents. If the documents that the coroner decides are relevant contain information which causes concern to the Police or Ministry of Defence, it is for them to decide whether to present to the coroner public interest immunity certificates setting out their concerns. If they do so, it will then fall to the coroner to conduct the balance for and against disclosure.

Legal aid for the representation of the victim ' s family

Following the judgments in the present cases, an ex gratia scheme was established by the Lord Chancellor to provide for legal representation at certain exceptional inquests in Northern Ireland where the applicant had a sufficiently close relationship to the deceased to warrant the funding of representation. In deciding whether to grant legal aid under this Scheme, the Lord Chancellor was obliged, by virtue of the Human Rights Act, to act in a manner compatible with the Convention.

The scheme governing legal aid for inquests is now on a statutory footing. The relevant legislation came into operation on 2 November 2003 . The scheme is supported by ministerial and administrative guidance. While there have been a number of judicial review applications concerning legal aid for the representation of the victim ' s family at inquests, the questions raised in these cases are essentially technical, in the Government ' s view, in that the question at stake is the scheme under which legal aid is available to families for preparatory work for inquests, rather than whether legal aid is available at all.

Steps taken to ensure that inquest proceedings are commenced promptly and pursued with reasonable expedition

In accordance with the Human Rights Act 1998, coroners are now required to act in a manner compatible with Article 2 of the Convention to ensure that inquest proceedings are commenced promptly and pursued with reasonable expedition.

An additional full-time Deputy coroner has been appointed for Belfast to expedite business, so that in Belfast there are now one full-time coroner, one full-time deputy coroner and one part ‑ time deputy coroner. The Northern Ireland Court Service is also providing additional administrative support to part ‑ time coroners. The coroners in Belfast have an administrative support team of five staff and a computer system to facilitate their work. The coroners also have a dedicated legal resource and, in more difficult cases, counsel is instructed.

While a backlog of 40 inquests into deaths occurring prior to the judgments of the European Court of 4 May 2001 had built up at the office of the coroner for Greater Belfast, these deaths are cases to which Article 2 may apply and consequently had not been listed for hearing because the coroners were awaiting the outcome of the Middleton judicial review and not because of lack of judicial resources. Without prejudice to their judicial independence in that regard, coroners would take steps to list inquests for hearing once the Court of Appeal had given judgment in the Jordan case, which had also been adjourned pending the outcome of the Middleton case.

Two major inquiries have been conducted into the functioning of coroners ' inquests in the United Kingdom . The report of the Fundamental Review of Death Certification and Coroner Services in England , Wales and Northern Ireland (Luce Review), which made a number of recommendations in relation to the inquest system for England , Wales and Northern Ireland , was published in June 2003. In addition, the Shipman Inquiry, established to investigate allegations of the murder by a doctor of at least 1 5 of his patients, issued its third report in July 2003, dealing with death certification and the investigation of deaths by coroners in England and Wales .

Following extensive consultation on the Luce Review, the Northern Ireland Court Service (NICtS) published a Consultation Paper outlining its proposals for the administrative redesign of the Coroners Service in Northern Ireland . The aim of the proposals is to modernise and improve the service by administrative means for all users, particularly the relatives of the deceased. The paper outlines the steps which might be taken to improve the inquest system in Northern Ireland in these areas and which can be implemented without primary legislation. The Home Office has also issued a position paper outlining the Government ' s response to the Luce and Shipman Reports.

In Northern Ireland , an interdepartmental working group has now been set up to consider and make recommendations for improving the arrangements for death certification and investigation in Northern Ireland having particular regard to the Luce Report, the Shipman Inquiry Third Report, the NICtS Proposals for Administrative Redesign and the Home Office position paper. The responses to the proposals of the NICtS, which were the subject of a period of public consultation, have been collated, and Ministerial approval will be sought to publish the full results of the consultation and a timetable for the introduction of the new proposals. It is hoped that the majority of the proposals can be introduced during 2005.

Individual right of petition

As to the violation of Article 34 in the McShane case, the Government ' s firm policy is to ensure that its obligations under this Article are respected. The Government has drawn the terms of the McShane judgment to the attention of all responsible for litigation in Northern Ireland on behalf of the Security Forces. In a recent case, where an undertaking was sought not to use documents disclosed by the Royal Ulster Constabulary, the undertaking was modified to ensure that disclosure to the European Court would not constitute a breach of that undertaking. Thus the solicitor from whom the undertaking was sought would not commit a disciplinary offence if the documents were disclosed to the European Court .

Appendix II to Interim Resolution ResDH(2005)20

Information provided by the Government of the United Kingdom to the Committee of Ministers

on individual measures taken so far or envisaged to comply with the European Court ' s judgments

In terms of the obligations incumbent on the United Kingdom under the Convention, the Government has confirmed its commitment to abide by the judgments of the Court in these cases and to implement the judgments, in accordance with Article 46. This commitment is not affected by the findings of the House of Lords in the McKerr judgment of 11 March 2004 that the Human Rights Act 1998 does not have retrospective effect and that under domestic law, there was no continuing breach of Article 2 in that case. The House of Lords ' judgment does not prejudge the question of the international obligations arising under Article 46. In the latter respect, different factors are at issue in each case and some reveal more problems than others. Further proceedings have been conducted and the Government considers that any measures required are under way in each case. The main question, in the Government ' s view, is whether, on the facts in each case, a fresh investigation is actually possible. The Government concedes that new investigations in the present cases could not satisfy the Convention requirements in respect of promptness and expedition.

Information regarding the proceedings conducted prior to the judgment in each case is contained in the relevant judgments. The following information, provided by the Government, concerns the measures currently under way in each case:

In the Jordan case, the inquest opened in January 1995 experienced a serious of adjournments relating, inter alia, to a number of judicial review applications by the applicants or in similar cases. Following the judgment of the Court of Appeal for Northern Ireland of 10 September 2004 in the Jordan judicial review application, however, the Coroner for Greater Belfast has indicated his intention to list the inquest in early 2005.

Civil proceedings were also instituted in 1992 alleging death by wrongful act. The applicant wishes to await the outcome of the inquest before pursuing civil action further.

In the McKerr case, t he family of Mr McKerr brought legal proceedings seeking to compel the Government to provide a fresh investigation into his death. These proceedings concluded with the House of Lords ' judgment, delivered on 11 March 2004 ( In re McKerr , [2004] UKHL 12, on appeal from [2003] NICA 1). In that case, the House of Lords declined to order a fresh investigation, as it considered that no right to an investigation in accordance with the procedural requirements of Article 2 of the Convention existed under domestic law at the time of the relevant events and that as such, there could be no continuing right under domestic law to such an investigation at present, even after the Human Rights Act came into force on 2 October 2000. The House of Lords left open, however, the question whether such a continuing obligation existed under international law in this case, observing that it was for the Committee of Ministers to decide on this issue, in exercise of its functions under Article 46 § 2 of the Convention.

Without fresh evidence, there is, in the Government ' s view, no scope for reopening the investigation into the death of Gervaise McKerr. This case is, however, among the more than 2000 cases of unresolved deaths that will be reviewed by the SCRT to re-examine whether there are any evidentiary opportunities.

The Kelly and others case concerned a single incident in which nine men were killed. These deaths, like those in the McKerr and Shanaghan cases, fall within the terms of reference of the SCRT and will be among the more than 2000 cases of unresolved deaths to be re-examined.

As regards civil actions, the family of Anthony Hughes issued proceedings against the Ministry of Defence in 1988 and the case was settled in 1991. Six other families, including the Kelly family, issued proceedings in 1990 but the families have not set down the cases for hearing.

The Shanaghan case also falls within the terms of reference of the SCRT, since the perpetrator of the shooting was never identified. The applicant has taken no steps for 9 years in the civil proceedings commenced in 1 994.

In the McShane case, an inquest was opened in May 1998 but adjourned pending the outcome of various legal proceedings and decisions at domestic level. However, a full-time coroner has now been assigned to this inquest and it is expected to commence in early 2005. The coroner remains under an obligation to report to the Director of Public Prosecutions any evidence that comes to light at the inquest that appears to disclose that a criminal offence may have been committed.

The applicant has not moved forward with civil proceedings brought against the Ministry of Defence and the Chief Constable of the Royal Ulster Constabulary.

In the Finucane case, two special police inquiries (the first two Stevens inquiries) were instituted to respond to concerns arising out of allegations of collusion between loyalist organisations and the security forces. The first of these two inquiries led to the reporting or charging of 59 people and the conviction of one person of conspiracy to murder persons other than Patrick Finucane. The second inquiry did not lead to the prosecution of any person. The third Stevens inquiry is squarely concerned with the Finucane murder and has led to a criminal prosecution being brought. One person was successfully prosecuted for the murder. This investigation continues.

The Government announced on 23 September 2004 that steps could now be taken to implement the decision to hold a new inquiry into this death. The inquiry will be held on the basis of new legislation, which is currently pending before the Parliament (Inquiries Bill).

Appendix III to Interim Resolution ResDH(2005)20

Judgments concerning violations of the Convention

by or involving allegations of collusion by the United Kingdom security forces

pending before the Committee of Ministers for supervision of execution

Application

number

Case name

Date of judgment

Date of final judgment

24746/94

Jordan

04/05/2001

04/08/2001

28883/95

McKerr

04/05/2001

04/08/2001

30054/96

Kelly and others

04/05/2001

04/08/2001

37715/97

Shanaghan

04/05/2001

04/08/2001

43290/98

McShane

28/05/2002

28/08/2002

29178/95

Finucane

01/07/2003

01/10/2003

In the above cases the Court found that there had been a violation of Article 2 of the Convention in respect of various failings in the investigative procedures concerning the death of the applicants ' relatives. The various failings may be summarised on a case-by-case basis as follows:

- Lack of independence of police investigators investigating the incident from the officers or members of the security forces implicated in the incident

Jordan, McKerr, Kelly and others, Shanaghan, McShane, Finucane

- The independent police investigation did not proceed with reasonable expedition

McKerr, McShane

- Lack of public scrutiny and information to the victims ' families on the reasons for the decision of the Director of Public Prosecutions not to prosecute any officer in respect of relevant allegations

Jordan, McKerr, Kelly and others, Shanaghan, Finucane

- The inquest procedure did not play an effective role in securing a prosecution in respect of any criminal offence which may have been disclosed

Jordan, McKerr, Kelly and others, Shanaghan, McShane, Finucane

- The scope of examination of the inquest was too restricted

Shanaghan, Finucane

- There was no prompt or effective investigation into allegations of collusion

Shanaghan, Finucane

- The persons who shot the deceased, and in the McShane case, the soldier who drove the armoured personnel carrier that fatally injured the applicant ' s husband, could not be required to attend the inquest as witnesses

Jordan, McKerr, Kelly and others, McShane

- The non-disclosure of witness statements prior to the appearance of a witness at the inquest prejudiced the families ' ability to prepare for and to participate in the inquest and/or contributed to long adjournments

Jordan, McKerr, Kelly and others, Shanaghan, McShane

- The absence of legal aid for the representation of the victim ' s family

Jordan

- The public interest immunity certificate had the effect of preventing the inquest from examining matters relevant to the outstanding issues in the case

McKerr

- The inquest proceedings did not commence promptly and did not proceed with reasonable expedition

Jordan, McKerr, Kelly and others, Shanaghan, McShane