Information Note on the Court’s case-law 259

February 2022

Gribben v. the United Kingdom (dec.) - 28864/18

Decision 25.1.2022 [Section IV]

Article 2

Article 2-1

Effective investigation

Thorough and sufficient scope of legacy inquest into fatal shooting by soldiers in Northern Ireland, despite certain identified weaknesses: inadmissible

Facts – In 1990, the applicant’s brother (Mr McCaughey) and another were shot and killed by soldiers from a specialist unit of the British Army in Northern Ireland. An inquest was opened in 2012 and ended the same year with a unanimous verdict of “lawful killing”.

In McCaughey and Others v. the United Kingdom, the Court found a violation of Article 2 (procedural limb) for the excessive delays in the investigative process into the circumstances of the deaths. In the present application, the applicant complains under the procedural limb of Article 2 in relation to the conduct of the inquest.

Law – Article 2:

(a) Preliminary observations

The Court had not intended for the specific requirements of the duty to investigate to be considered in a piecemeal and incremental fashion. As the separate requirements were not ends in themselves, compliance with the essential parameters had to be considered jointly and not separately. Furthermore, it had envisaged a global assessment of all relevant investigatory steps taken by the authorities. However, in the cases concerning conflict-related deaths in Northern Ireland, the focus had been primarily on the inquests. In the United Kingdom, inquests played an important role in discharging the State’s investigatory duty under Article 2, although an inquest, in and of itself, was neither necessary nor necessarily sufficient to discharge that duty.

There were good reasons why such emphasis had been placed on the inquest procedure in Northern Ireland and in the present case the main thrust of the applicant’s complaints had concerned the conduct of the inquest. However, the inquest procedure was currently unable to cope due to the large number of ongoing and pending legacy inquests and that the coronial system was beset by systemic delay. That being so, it would neither be desirable nor appropriate for the Court to act as a court of further appeal addressing each and every challenge to the inquest procedure if and when it arose. Not only would the Court effectively become a ”court of fourth instance”, but the problem of delay at domestic level would be further exacerbated.

Once an application was lodged, it would usually fall to the Court, at the point at which it examined the complaints, to carry out a global assessment of the investigation which had taken place to date by reference to the essential parameters identified in its case-law. Nonetheless, in McCaughey and Others v. the United Kingdom , the Court had only dealt with the complaint concerning the promptness of the investigation and had informed the applicants that, if dissatisfied in the future with the progress or outcome of ongoing domestic procedures, it would be open to them to reintroduce their complaints. On the particular facts of the case at hand, the Court accepted that the present application concerned new aspects which it had not covered in its previous judgment.

(b) Assessment of the inquest

The Court confined its assessment to the specific complaints made by the applicant about the conduct of the inquest. She made five complaints in that regard:

(1) The disclosure of material to the next of kin: The applicant complained that the Coroner had refused to provide her with disclosure of the involvement of the soldiers in other lethal force incidents and had prevented the next of kin from questioning the soldiers and other witnesses about such matters; and that references to such incidents in the soldiers’ statements had not been put before the jury, thereby creating a false impression that the soldiers had not been involved in such incidents.

While the Court agreed that the material ought to have been disclosed to the next of kin when it had first been sought, it was not persuaded that as a consequence of the non-disclosure the applicant had been excluded from the investigative process to such a degree as would infringe the minimum standard under Article 2. Furthermore, in view of the Court of Appeal’s conclusion that this material was either not relevant or not material, the Court was similarly not persuaded that the decision to prevent the next of kin from questioning the soldiers and other witnesses about those other lethal force incidents and to remove references to such incidents in the statements put before the jury had prevented examination of those aspects which had fallen within the scope of the inquest.

(2) The recall of one of the soldiers: The domestic courts had considered it desirable for one of the soldiers (“soldier A”) to have returned to give further evidence to the inquest. However, the Coroner’s decision to conclude the inquest without that further evidence could not be impugned. The difficulties connected with the recall of soldier A, now a private citizen living abroad, were an inevitable consequence of the delay in conducting the inquest; his availability and whereabouts were not known; and in the circumstances, the Coroner had considered that the value in completing the inquest efficiently and while the evidence had still been fresh in the mind of the jury had outweighed the value in speculatively trying to seek A’s attendance. Soldier A’s statement, together with other evidence and findings, had been read to the jury and they had been informed of the situation concerning Soldier A. Moreover, the participants had been permitted to make their own submissions to the jury on the relevant matters.

(3) The conduct of the inquest with a jury: The applicant had not challenged the engagement of a jury per se before or during the inquest. Had she done so, the Coroner and possibly the domestic courts would have been able to consider the risk of bias and, if such a risk had been found to exist, direct that the inquest be conducted by the Coroner sitting alone. Instead, the applicant had only brought her challenge after the jury had delivered its verdict, when the only remedy would have been to quash the verdict and order a fresh inquest. That would have caused significant further delay which in turn would have further compromised the adequacy and effectiveness of the investigation. As such, the domestic courts could not be criticised for refusing leave to apply for judicial review on that ground.

(4) The decision not to discharge a specific juror : It had been open to the Coroner to have investigated, of his own motion, allegations as to one of the juror’s inappropriate or hostile behaviour towards the next of kin. Indeed, in view of the highly sensitive nature of the inquest, it might have been preferable for him to have done so. However, given Coroner’s clear findings in relation to the relevant juror, which had been twice upheld on appeal, and the jury’s clear and unanimous verdict, that matter did not in and of itself seriously prejudice the investigation as a whole.

(5) The Coroner’s questions, directions and summations to the jury: Unlike other previous legacy inquests considered by the Court, in the present case the jury had been tasked with providing not just a short form verdict but also a longer, narrative verdict on the issues central to the inquest. While the Coroner’s questions, directions and summations to the jury had helped to shape the narrative verdict, the latter had provided an important check on the role of the Coroner as it had allowed the jury to elucidate the reasoning behind its verdict, and had made it possible to determine the impact on the jury of any deficiencies in the Coroner’s directions.

The Court did not consider that the Coroner’s direction to the jury had fallen significantly short of ensuring that the soldiers’ recourse to lethal force had been assessed by reference to the Convention standard of “absolute necessity”, or that the fact-finding role of the inquest had in any way been undermined. When the narrative verdict was considered together with the Coroner’s questions and summation to the jury, it was clear that the jury had considered that each of the soldiers had honestly and reasonably believed that their lives had been in danger both when they had opened fire and as they had continued to fire; that the force used throughout had been reasonable in the circumstances; and that once the soldiers had felt compromised the use of force had been absolutely necessary, there having been no other reasonable course of action available to them.

Overall, the inquest had been thorough, with a scope which had extended beyond matters directly causative of the deaths and which had encompassed broader questions relating to the planning and scope of the operation. While the Court had identified certain weaknesses in the inquest, it did not consider that those, either individually or cumulatively, had undermined the ability of the inquest to fulfil that essential purpose.

Conclusion : inadmissible (manifestly ill-founded).

(See also McCaughey and Others v. the United Kingdom , 43098/09, 16 July 2013, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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