Communicated on 7 July 2020 Published on 27 July 2020

FIRST SECTION

Application no. 28864/18 Sally GRIBBEN against the United Kingdom lodged on 7 June 2018

STATEMENT OF FACTS

1 . The applicant, Ms Sally Gribben, is an Irish national, who was born in 1961 and lives in Dungannon. She is represented before the Court by Mr F. Shiels, a lawyer practising in Belfast.

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

3 . On 9 October 1990 the applicant ’ s brother, Martin McCaughey, and Desmond Grew were shot and killed outside a shed on a farm near Loughgall by soldiers from a specialist unit of the British Army (soldiers A ‑ K). The autopsy of Martin McCaughey described the cause of death as “laceration of the brain due to bullet wounds to the head”, noting that he had been struck by approximately ten high-velocity bullets in all. The autopsy of Desmond Grew described the cause of death as “multiple injuries due to multiple high-velocity bullet wounds of trunk and limbs”, noting that there were approximately forty-eight wounds made by bullets entering and exiting his body. No shots were fired by the deceased. These shootings were two of several which took place around that time and which gave rise to allegations of a shoot-to-kill policy by the security forces, including by that specialist unit, in Northern Ireland.

4 . On 11 October 1990 the Irish Republican Army stated publicly that the deceased were IRA volunteers on active service at the time of their deaths.

5 . A detailed summary of the investigation proceedings up to 2012 is set out in McCaughey and Others v. the United Kingdom , no. 43098/09, §§ 12 ‑ 63, ECHR 2013.

(a) The police investigation and decision not to prosecute (1991-1993)

6 . The RUC conducted an investigation into the deaths. In February 1991 the Director of Public Prosecutions (DPP) received the investigation file. Between April 1991 and September 1992 the DPP issued eight directions for, inter alia , further investigative steps. On 2 April 1993 the DPP issued a direction of no prosecution ( nolle prosequi ) in respect of the soldiers involved in the shooting. The decision was not notified directly to the families.

7 . In response to later judgments of this Court (see Committee of Ministers information document ( CM/Inf/DH(2014)16-rev ), the possibility to judicially review decisions not to prosecute was introduced in Northern Ireland. The applicants requested reasons for the decision not to prosecute in April 1993. On 25 July 2011 the Acting Deputy DPP provided the following reasons for the 1993 decision not to prosecute (see McCaughey and Others , § 42 ):

“Having carefully considered all the evidence and information it was concluded that the Test for Prosecution was not met in respect of any soldier for any offence relating to the deaths of Desmond Grew and Martin McCaughey. All soldiers had raised the defence of self-defence in opening fire. As you will be aware, where the defence of self-defence is raised the burden of negativing the defence rests on the prosecution and it is for the prosecution to prove to the very high standard required in a criminal trial that the person was not acting in self-defence. It was concluded that the available evidence was not sufficient to do so.”

(b) The inquest proceedings (1994-2012)

(i) The pre-inquest proceedings

8 . Steps to hold an inquest were begun in 1994. The pre-inquest proceedings included litigation initiated by the family which resulted in a High Court decision on 20 January 2004 ordering the Police Service of Northern Ireland (PSNI (the successor to the RUC)) to disclose further information to the inquest. That litigation also concerned other questions and ended in a decision of the Supreme Court on 28 March 2007.

(ii) The preliminary inquest proceedings

9 . Then preliminary inquest proceedings began with a hearing on 4 September 2009. However, litigation was initiated on the scope of the inquest and in particular whether Article 2 applied to the inquest as a matter of domestic law. This litigation ended in a decision of the Supreme Court of 18 May 2011, which, applying this Court ’ s case-law (in particular, Šil ih v. Slovenia [GC], no. 71463/01, 9 April 2009), concluded that Article 2 did apply to the inquest proceedings.

(iii) The inquest

10 . The inquest then opened on 12 March 2012 and ended on 2 May 2012 with a verdict of “lawful killing”.

(c) The judicial review of the inquest (2012-2017)

11 . On 29 June 2012, the applicant sought permission to judicially review the Coroner ’ s conduct of the inquest on five grounds:

(i) failing to ensure disclosure of possibly relevant material to the next of kin;

(ii) failing to secure the presence of a witness identified as ‘ Soldier A ’ ;

(iii) permitting the inquest to sit with a jury due to the potential for jury bias;

(iv) failing to discharge one member of the jury for lack of impartiality;

(v) failings in the Coroner ’ s summation and directions to the jury.

12 . On 18 October 2012 the High Court granted permission to judicially review the verdict on ground ii), which was the failure to secure the presence of “Soldier A” at the inquest. Permission was refused on all other grounds.

13 . On 3 June 2014 the Court of Appeal granted leave to judicially review the verdict on a further ground – namely, the Coroner ’ s failure to disclose details of other lethal force incidents in which the soldiers had been involved – as it was concerned that the Coroner might have proceeded on the basis that “shoot-to-kill” was not in issue in the inquest. A decision on whether to grant leave in respect of the use of a jury was deferred to the substantive hearing in light of a pending decision of the Court of Appeal on the same issue in another case. Permission was again refused in respect of the remaining complaints.

14 . Following the judgment of the Court of Appeal on 3 June 2014, the High Court reconsidered grounds i)-iii). On 13 April 2015 it refused leave to challenge the Coroner ’ s decision to conduct the proceedings before a jury. In respect of the other grounds, the High Court considered that the jury had been given adequate opportunity to consider issues touching on the “shoot-to-kill” policy, such as the issue of culture and/or the manner in which the operation had been conducted. Furthermore, the Coroner had kept open the “shoot-to-kill” issue and did not find anything emerging in the course of the evidence that could have been potentially relevant to that issue. Consequently, the High Court was satisfied that there had been an effective examination and investigation of the “shoot-to-kill” issue for the purposes of Article 2 of the Convention. With regard to the failure to secure the attendance of Soldier A, the Coroner had had to make a difficult decision but in the circumstances the High Court was satisfied that even in his absence there had been an effective investigation for the purposes of Article 2 of the Convention.

15 . An appeal against this decision was dismissed by the Court of Appeal, which considered that the Coroner had not been obliged in the circumstances of this inquest to embark upon an extended examination of whether the security forces in Northern Ireland had pursued a “shoot-to-kill” policy at the relevant time. It further considered that the Coroner ’ s decision to proceed without Soldier A had been reasonable, proportionate and well within his discretion. In the circumstances, he had been left with no practical option but to proceed as he did if the inquest were to be concluded while the evidence was sufficiently fresh in the minds of the jury.

16 . Finally, the Court of Appeal refused permission to appeal against the High Court ’ s refusal of leave to challenge the decision to conduct the proceedings before a jury.

17 . The Supreme Court refused to grant permission to appeal on 18 December 2017:

“...because the application does not raise an arguable point of law of general public importance which ought to be considered by the Supreme Court at this time bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.”

18 . The refusal to grant permission to apply for judicial review on grounds iv)-v) was also subject to an unsuccessful appeal. The litigation ended with a judgment of the Supreme Court on 30 October 2014, refusing permission for the same reasons as in its decision of 18 December 2017 (see paragraph 17 above).

19 . In the case of McCaughey and Others , cited above, the Court found that there had been excessive delays in the pre-inquest proceedings from 1994-2012 (see paragraphs 8 - 10 above) and those delays could not be regarded as compatible with the State ’ s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths. It considered that the foregoing finding of excessive investigative delay of itself entailed the conclusion that the investigation was ineffective for the purposes of Article 2 (see McCaughey and Others, cited above, § 140).

20 . In respect of the State ’ s obligations under Article 46, the Court indicated (see McCaughey and Others, cited above, § § 144-145):

“... that the carrying out of investigations, including the holding of inquests into killings by the security forces in Northern Ireland, has been marked by major delays. It further considers that such delays remain a serious and pervasive problem in Northern Ireland. ... the Committee of Ministers ... has expressed its concern about investigative delay [in other similar cases] those judgments reflected a pattern of delay very similar to that which took place in the present case (see, in particular, McKerr and Hugh Jordan ). Almost twelve years after those four judgments were delivered, the Committee of Ministers continues to supervise individual measures of execution concerning investigative delay.

145. The Court recalls that it falls to the Committee of Ministers, acting under Article 46 of the Convention, to address the issue of what – in practical terms – may be required of the respondent Government by way of compliance. However, the Court considers that, whatever the specific modalities chosen, this must involve the State taking, as a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously.”

21 . In the case of Gribben and Quinn v. the United Kingdom (dec.), no. 20855/15, ECHR 15 March 2016), the applicants complained under Article 2 of the Convention that there had been a breach of the procedural obligation to conduct an “effective official investigation” into the death of their relatives due to the conduct of the inquest. In particular, they complained about the Coroner ’ s failure to discharge a juror who lacked impartiality, and to direct the jury in a manner consistent with Article 2 of the Convention.

22 . Noting that the complaint was identical to that being considered in the judicial review proceedings (see paragraphs 11 - 18 ), the Court found that the complaints under Article 2 of the Convention were inadmissible as being premature and/or on the ground that domestic remedies had not yet been exhausted within the meaning of Article 35 § 1. It noted, however, that should the applicants be dissatisfied in the future with the progress or outcome of the domestic procedures, it would be open to them to reintroduce these complaints under the procedural aspects of Article 2 of the Convention.

23 . Since 4 May 2001 the Committee of Ministers has been supervising cases concerning the State ’ s failure to investigate the actions of security forces in Northern Ireland. There are currently eight cases pending before the Committee including McCaughey and Others (cited above) . A summary of the supervision process up to 2009 is set out in McCaughey and Others (cited above, §§ 86-89). A more detailed overview is set out in the Committee of Ministers informati on document of 27 May 2014 (see CM/Inf/ DH( 2014)16-rev).

24 . The Committee last examined the g roups of cases at its 1340 th DH meeting (12- 14 March 2019). It adopted the following decision:

“The Deputies

1. recalled that this group of cases concerns the effectiveness of investigations into the deaths of the applicants ’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicions of collusion with those forces;

As regards individual measures

2. recalled with serious regret that the investigations and related litigation in the cases of McKerr, Shanaghan, Jordan, Kelly and Others and McCaughey and Others have still not been completed;

3. recalled also the Committee ’ s decision of December 2015 in relation to the Finucane case to resume consideration of the reopening of individual measures once the domestic litigation has concluded; noted in this respect the judgment of the Supreme Court of the United Kingdom of 27 February 2019; invited the authorities to provide their response to the judgment by 21 June 2019;

As regards general measures

4. reiterated their serious concerns about the delay in the establishment of the Historical Investigations Unit and other legacy institutions and underlined that, notwithstanding the complexity of the broader political picture, it is imperative that a way forward be found to enable effective investigations to be conducted, particularly in light of the length of time that has already passed since these judgments became final and the failure of previous initiatives to achieve effective, expeditious investigations;

5. noted with interest, in this context, that the public consultation on the draft legislation on the establishment of the Historical Investigations Unit and three other legacy institutions set out in the 2014 Stormont House Agreement concluded in October 2018 and drew a large number of responses from multiple interested stakeholders, including victims ’ groups and civil society organisations; noted further with satisfaction the authorities ’ indication that they remain committed to the establishment of those institutions to deal with the legacy of Northern Ireland ’ s past and hope to present amended legislation to Parliament in the near future;

6. strongly encouraged the authorities to act on this commitment, to provide an estimated timetable for the next steps and to ensure that the legislation introduced to Parliament will guarantee the Historical Investigations Unit ’ s independence in both law and practice and enable it to conduct effective investigations which are sufficiently accessible to the victims ’ families in full compliance with Article 2 of the Convention;

7. noted the announcement on 14 February 2019 of the discovery of significant police documentation of relevance for legacy investigations of the Office of the Police Ombudsman of Northern Ireland (OPONI), including in respect of the Shanaghan case; recalled the Committee ’ s ongoing general measure supervising the functioning of the OPONI; welcomed the announcement of an independent review by the Criminal Justice Inspection Northern Ireland into the methods used by the Police Service of Northern Ireland to disclose information in respect of historic cases to the OPONI; looked forward to the outcome of this review;

8. recalling the judgment of the High Court of Northern Ireland of 8 March 2018 which directed a reconsideration of the provision of additional funding for legacy inquests, noted with satisfaction the announcement by the Northern Ireland Department of Justice that funding has been agreed to support reform in accordance with the Lord Chief Justice of Northern Ireland ’ s proposals and so that legacy inquests, including those pending for the individual applicants in these cases, can be concluded without further delay; looked forward to further updates from the authorities as to implementation;

9. decided to resume consideration of the progress made in these cases at their 1355th meeting (September 2019) (DH) .”

25 . The relevant domestic law and practice is set out in McCaughey and Others (cited above, §§ 68-89).

COMPLAINTS

26 . The applicant complains under the procedural aspect of Article 2 of the Convention that there has been a failure to conduct an effective investigation into the circumstances of the death of Martin McCaughey and Desmond Grew. The complaint focuses on the conduct of the inquest, in particular arguing that the inquest was not effective for the five reasons examined in the domestic judicial proceedings (see paragraph 11 above).

QUESTIONS TO THE PARTIES

1. Having regard to the procedural protection of the right to life and recalling the Court ’ s general approach of examining the investigation proceedings as a whole (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 286, 30 March 2016), was the investigation by the domestic authorities in breach of Article 2 of the Convention?

2. Recalling that compliance with the pro cedural requirements of Article 2 is assessed on the basis of several essential elements, including promptness, which are inter-related and each of them, taken separately, does not amount to an end in itself but are to be examined jointly to enable the degree of effectiveness of the investigation to be assessed (see Mustafa Tunç and Fecire Tunç v. Turkey (no. 24014/05, § 225, 14 April 2015); and in light of the Court ’ s conclusions in McCaughey and Others v. the United Kingdom , no. 43098/09, § 140, ECHR 2013 that the finding of excessive investigative delay of itself entailed the conclusion that the investigation was ineffective for the purposes of Article 2; how should the Court approach the allegation that the part of the investigation complained of in the present case was in breach of Article 2 of the Convention?

3. Does the complaint in the present case concern compliance with the Court ’ s judgment by the High Contracting Party and so fall outside the Court ’ s jurisdiction (see Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, § 102, 11 July 2017)?

4. In particular, were there were any factual developments or any new events or circumstances not determined by the above McCaughey and Others judgment which could be said to raise a “new issue” capable of triggering a fresh investigative obligation under Article 2 of the Convention and thus a possible breach of that provision (see Egmez v. Cyprus , (dec.) no. 12214/07, § 62, 18 September 2012)?