FOURTH SECTION

DECISION

Application no. 41630/22 Brenda DOWNES against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 11 April 2023 as a Committee composed of:

Branko Lubarda, President , Tim Eicke, Ana Maria Guerra Martins , judges , and Valentin Nicolescu, Acting Deputy Section Registrar ,

Having regard to:

the application (no. 41630/22) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 August 2022 by an Irish national, Ms Brenda Downes, who was born in 1963 and lives in Belfast (“the applicant”) and was represented by represented by Mr M. Brentnall of Brentnall Legal Limited, a firm of solicitors with its offices in Belfast;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

The applicant is the widow of Sean Edward Downes.

On 12 August 1984 Mr Downes attended a parade organised by Sinn Féin. The parade was in breach of the Public Order (Northern Ireland) Order 1981. Martin Galvin, the publicity director for the New York-based NORAID (a group that raised funds for Irish republicans), was expected to appear despite having been refused entry to the United Kingdom on the ground that his exclusion was conducive to public good. Once the parade reached the Sinn Féin Centre on the Andersonstown Road rioting commenced and the RUC fired a number of baton rounds to disperse the rioters.

A rally then commenced and Martin Galvin was introduced to the crowd. RUC officers began to make their way through the crowd to arrest him. Many of the men in the crowd resisted the move and assaulted the officers, and groups of youths began to throw missiles and petrol bombs at them. During this period Mr Downes was shot dead at short range with a riot gun by Reserve Constable Nigel Hegarty while he was running to attack two police officers from the rear wielding a stick or pole. There was no dispute as to the basic facts because the relevant events were filmed by television cameras.

The RUC carried out an investigation into the circumstances of Mr Downes’ death and forwarded papers to the Director of Public Prosecutions for Northern Ireland, who directed that Reserve Constable Hegarty be charged with manslaughter.

Reserve Constable Hegarty stood trial in 1985, before a Judge sitting without a jury. His defence was that he fired at Mr Downes to defend the two RUC officers whom he was running to attack.

On 24 September 1986 Reserve Constable Hegarty was found “not guilty” of manslaughter since, on the evidence before the Judge, he had not used unreasonable force in all the circumstances. The Judge accepted that he believed his colleagues were in danger of serious injury and that he had reasonable grounds for doing so.

On 20 January 1987 the Coroner informed the applicant that in light of the prosecution of Reserve Constable Hegarty for manslaughter he did not propose to hold an inquest.

The applicant sought permission to judicially review that decision in January 1988. Although she failed to explain the delay in bringing the application, the High Court agreed to consider the merits since the existence of contemporaneous video, film and photographs reduced the areas of possible factual dispute, and no person would be unfairly prejudiced by granting the relief sought.

On 29 June 1988 that application was dismissed. The court had regard to an affidavit sworn by the Coroner and found that he had considered all the evidence in his possession and did not regard the fact that a prosecution had taken place as conclusive. Rather, he had concluded that the circumstances of the death had been made publicly known through the public court hearing.

In 2019 the applicant asked the Attorney General for Northern Ireland to open an inquest into the death of her husband. A copy of that request has not been provided to the Court but it would appear to have followed the revelation in December 2005 that Denis Donaldson, a leading member of Sinn Féin and the chair of the 1985 rally, was in fact an MI5 agent. The Attorney General refused the request and the applicant sought permission to judicially review that decision. The application was adjourned pending Re McQuillan (2021) UKSC 55 and following delivery of that judgment on 15 December 2021, on 26 April 2022 it was ordered on consent that the applicant’s application be dismissed.

The McQuillan case concerned the nature of the duty to investigate incidents which occurred in Northern Ireland in 1971 and 1972 during the worst period of “the Troubles”. The case was heard by the Supreme Court, which gave judgment on 15 December 2021. Having regard to Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, ECHR 2013), the Supreme Court accepted that the “genuine connection” test had to be applied to the Human Rights Act 1998 (“HRA”) by analogy, but considered that the analogy had to be developed with due regard to the context of the domestic Convention rights regime within the HRA. While the “critical date” for the purposes of a Convention complaint was 14 January 1966, that being the date on which the United Kingdom accepted the right of individual petition (see Chong and Others v. the United Kingdom ((dec.), no. 29753/16, §§ 84-90, 11 September 2018), for the purposes of the HRA it would have to be 2 October 2000, being the date that the Act entered into force. In this regard, the Supreme Court observed that it was inherent in the scheme of the HRA that it would not mirror the position in Strasbourg in all cases; there would be many cases in which prior to 2 October 2000 a public authority might act in a way which engaged the responsibility of the United Kingdom under international law and constituted a violation of a right under the Convention for which a remedy could be sought in Strasbourg, yet there would be no remedy obtainable under the HRA.

THE COURT’S ASSESSMENT

The applicant complains under Article 2 of the Convention that the respondent State has not carried out an effective investigation into her husband’s death. She contends that the prosecution of Reserve Constable Hegarty was limited to his own role in the events of 12 August 1984 and that there has been no examination of the role played by Denis Donaldson. As a consequence, the investigation has not been “adequate” for the purposes of Article 2 of the Convention. She further alleges that the emergence of new information concerning the status of Denis Donaldson sufficed to revive the procedural obligation to investigate (see Brecknell v. the United Kingdom , no. 32457/04, § 71, 27 November 2007).

However, regardless of whether the Brecknell “revival test” has been met on the facts of the case, the Court considers that the present application has been lodged significantly out of time. Denis Donaldson’s status as an M15 agent was revealed in December 2005. The applicant only asked the Attorney General to open an inquest into the shooting of her husband in 2019. No explanation has been given for the delay of some fourteen years between this new evidence coming to light and the request for an inquest based on that evidence. As such, it cannot be said that the present application was lodged “with due expedition” (see Chong and Others , cited above, § 93). As the Court observed in Varnava and Others v. Turkey ([GC], nos. 16064/90 and 8 others, § 161, ECHR 2009), with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish. Moreover, the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness. Accordingly, applicants cannot wait indefinitely before coming to Strasbourg. They must show a certain amount of diligence and initiative and introduce their complaints without undue delay.

The Court therefore considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, the application must be rejected under Article 35 §§ 1 and 4 of the Convention as having been lodged out of time.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 11 May 2023.

Valentin Nicolescu Branko Lubarda Acting Deputy Registrar President