Lexploria

Information Note on the Court’s case-law 42

May 2002

McShane v. the United Kingdom - 43290/98

Judgment 28.5.2002 [Section IV]

Article 2

Article 2-1

Life

Effectiveness of investigation into death resulting from actions of security forces during a riot: violation

Article 34

Hinder the exercise of the right of application

Complaint by public authority against applicant’s lawyer in domestic proceedings: failur e to comply with obligations

Facts : The applicant’s husband was killed when an armoured personnel carrier crushed him beneath a hoarding behind which he was sheltering during a riot in Northern Ireland in 1996. The precise circumstances are in dispute. The scene was secured after some delay and an investigation was begun by the Royal Ulster Constabulary (RUC); an appeal for witnesses was made and four civilian witnesses as well as over 100 witnesses from the security forces were interviewed. The RUC sent th e file to the Director of Public Prosecutions (DPP), who concluded that there was insufficient evidence to proceed with a prosecution. A number of anonymous witness statements were subsequently obtained but the DPP maintained his previous decision. An inqu est due to take place at the end of 1999 was adjourned to allow the applicant to seek disclosure of certain material. In 1999 the applicant also instituted civil proceedings, which are still pending. In 2001 the RUC complained to the Law Society that mater ial disclosed to the applicant’s solicitor on a confidential basis for the purposes of the inquest had been used by her representative in the proceedings before the Court. However, the Law Society found that there was insufficient evidence of unprofessiona l conduct.

Law : Article 2 – This provision covers death resulting as an unintended outcome of the use of force, a notion which is not limited to the use of weapons or physical violence but extends to the use of an army vehicle to break down a barricade. Wh ere a soldier is ordered during a riot to use a vehicle in this way, it must be regarded as part of an operation for which State responsibility may arise. As the facts were disputed and civil proceedings were pending, it would not be appropriate for the Co urt to attempt to establish the facts or to rely on the statements of the anonymous witnesses. The situation could not be equated to a death in custody where the burden may be regarded as resting on the State to provide a satisfactory and plausible explana tion. Consequently, the Court made no findings as to the alleged responsibility of the State for the death of the applicant’s husband. As to the effectiveness of the investigation: (i) The Court accepted that the securing of the scene was as prompt as coul d be expected in the situation and considered that there was insufficient evidence to conclude that the RUC investigation was not able to identify the participants or the course of the events. However, a serious issues arose as to the independence of the R UC investigation since, although the driver was a soldier, the operation had involved both the army and the RUC: the investigation was thus conducted by police officers connected, albeit indirectly, with the operation under investigation, which cast doubt on its independence. Moreover, taking into account various delays, the investigation was not conducted with reasonable expedition. (ii) The independence of the DPP was not in doubt and he gave reasons for the decision not to prosecute, although not obliged to by law. The Court was not persuaded that Article 2 automatically required the provision of reasons by the DPP: it might in appropriate cases be compatible with the requirements of Article 2 that reasons could be requested by the victim’s family, as occ urred in this case. Furthermore, the applicant had not sought to challenge the alleged inadequacy of the reasons in judicial review proceedings, nor had she complained about any lack of expedition on the part of the DPP. (iii) With regard to the inquest, t he Court had already found in other cases relating to Northern Ireland that the effectiveness of the inquests was undermined by the lack of compellability of security force witnesses and that the lack of a verdict or other means by which the inquest could form an effective part of a process of identification and prosecution of a perpetrator of an unlawful act was not compatible with the requirements of Article 2. The same applied in the present case. On the other hand, the fact that the Coroner’s investigat ion is confined to the matters directly causative of the death and does not extend to the broader circumstances does not necessarily contradict the requirements of Article 2. Whether an inquest fails to address the necessary factual issues will depend on t he particular circumstances of the case and the Court was not persuaded that the surrounding events in the present case were necessarily relevant to a determination of the cause of death. However, there were significant delays in providing the applicant wi th documents for the inquest, linked to the overall lapse of time in the inquest proceedings, which had not been commenced with the required promptness. (iv) Finally, civil proceedings, which are undertaken on the initiative of the applicant, do not involv e the identification and punishment of any alleged perpetrator. In conclusion, there had been a number of shortcomings in the procedures of investigation.

Conclusion : violation (unanimously).

Article 6 § 1 – The lawfulness of the death was the subject of pending civil proceedings instituted by the applicant and in these circumstances and in the light of the scope of the application, there was no basis for reaching any findings as to the alleged improper mo tivation behind the incident.

Conclusion : no violation (unanimously).

Article 14 – Where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory, notwith standing that it is not specifically aimed or directed at that group. However, even though statistically it appeared that the majority of people shot by the security forces were from the Catholic or nationalist community, the Court did not consider that st atistics could in themselves disclose a practice which could be classified as discriminatory within the meaning of Article 14. There was no evidence before the Court which would entitle it to conclude that any of those killings, save those which resulted i n convictions, involved the unlawful or excessive use of force by members of the security forces.

Conclusion : no violation (unanimously).

Article 13 – An applicant who claims the unlawful use of force by soldiers or police officers in the United Kingdom must as a general rule exhaust domestic remedies by taking civil proceedings by which the courts will examine the facts, determine liability and if appropriate award compensation. These civil proceedings are wholly independent of any criminal investigation and their efficacy has not been shown to rely on the proper conduct of criminal investigations or prosecutions. In the present case, the ap plicant had lodged civil proceedings, which were pending, and the Court found no elements which would prevent those proceedings providing redress in respect of the alleged excessive use of force. The complaints concerning the investigation into the death h ad been examined under the procedural aspect of Article 2 and no separate issue arose in that respect.

Conclusion : no violation (unanimously).

Article 34 – The threat of disciplinary proceedings against an applicant’s lawyer may infringe the guarantee of f ree and unhindered access to the Convention system. Although the RUC’s complaint was not directed against the applicant’s representatives before the Court, it related to materials which those representatives had submitted and was thus connected with the co nduct of the application. A sanction was invoked by a public authority against a solicitor in respect of her purported disclosure of information to an applicant for use in proceedings before the Court, which could have a chilling effect on the exercise of the right of individual petition.

Conclusion : failure to comply with obligations (unanimously).

Article 41 – The Court awarded the applicant £8,000 in respect of non-pecuniary damage and also made an award in respect of costs and expenses.

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