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FOURTH
SECTION
CASE OF MCGRATH v. THE UNITED KINGDOM
(Application
no. 34651/04)
JUDGMENT
STRASBOURG
27
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of McGrath v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G.
Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J.
Šikuta,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34651/04) 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”) by an Irish
national, Mr Michael McGrath (“the applicant”), on 10
September 2004.
- The
applicant was represented by Madden & Finucane, solicitors
practising in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger of
the Foreign and Commonwealth Office, London.
- The
applicant alleged that there had been no adequate investigation into
allegations of collusion and/or involvement by security forces in his
being seriously injured, nor any effective remedy for the same. He
invoked Articles 2 and 13 of the Convention.
- By
a decision of 6 March 2007 the Court declared the application
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1), to which they each responded with further written
comments (Rule 59 § 1). The Chamber decided, after consulting
the parties, that no hearing on the merits was required (Rule 59 §
3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1922 and lives in Granemore, County Armagh.
A. The attack on the applicant and the initial
investigation
- At
about 10.40 p.m., shortly after closing time, on 6 June 1976, a
police officer in the Royal Ulster Constabulary (“RUC”)
drove a car, stolen by RUC Reserve Constable Laurence McClure, up to
the Rock Bar, a public house. The applicant was leaving the bar at
that time. He was shot twice in the stomach by McClure, who then
placed a 10lb gelignite bomb against the door of the pub. The
detonator exploded but the bomb failed to explode. At the later trial
a reserve police constable, William McCaughey, stated that shots were
fired by his companions at the injured man on the ground and then he
fired a number of shots through the window of the bar. Bullet strike
marks were later found around the darts board inside the bar, where
there had been seventeen people. No-one else was physically injured.
- The
applicant was taken to hospital in an ambulance and police attended
the scene, sealing off the area while an army technical officer
examined the explosive device and ensured that it was in a safe
condition. A Scene of Crime Officer examined the scene, took
possession of material associated with the bomb and a gun recovered
from a burnt out car found approximately one mile away, which police
linked to the attack. Photographs of the bar were taken and maps
prepared.
B. The investigations concerning McCaughey and Weir
- The
investigation did not close and became active again in 1978, when a
Catholic priest Father Hugh Murphy was abducted by loyalist
paramilitaries intending to use him as a hostage vis-à-vis
the IRA. In the course of the investigation, the police arrested
McCaughey, who, in the course of questioning, revealed his part in
the abduction of the priest and in a variety of other loyalist
paramilitary incidents. McCaughey made allegations incriminating
himself and police officer McClure in respect of the Rock Bar attack.
McClure was arrested and admitted involvement. Two further serving
police officers, Ian Mitchell and David Wilson, also admitted
involvement in, or prior knowledge of, the attack on the bar.
McCaughey admitted firing the shot which wounded the applicant.
- The
applicant was aware that charges were pending against four police
officers. He had been contacted by the police in April 1980 and
summoned to appear in Belfast Crown Court on 23 April 1980. He was
subsequently advised of various date changes and then that the case
was postponed and that he would be contacted. In fact the hearing
took place on 30 June 1980. The applicant had not been informed and
learned about the outcome on the radio.
- Three
men, McCaughey, McClure and Mitchell, faced charges of attempted
murder of the applicant, wounding the applicant with intent contrary
to section 18 of the Offences against the Persons Act 1961, attempted
murder of the persons inside the bar, causing an explosion contrary
to section 2 of the Explosives Substances Act 1883, possession of
explosive substances with intent to endanger life or cause serious
injury and possession of firearms and ammunition with intent. The
three officers pleaded not guilty to the charges of attempted murder;
McClure and Mitchell pleaded not guilty to wounding the applicant.
The Director of Public Prosecutions (“the DPP”) entered a
nolle prosequi in respect of those charges which accordingly
were not proceeded with. No reasons were given for this decision. The
only person facing a charge concerning the applicant was McCaughey,
who received a term of seven years for wounding him. McClure was
sentenced to two years' imprisonment for causing an explosion,
possession of an explosive substance with intent and possession of
firearms and ammunition with intent, all sentences suspended for
three years. Another RUC officer, David Wilson, was charged with
withholding information contrary to section 5(1) of the Criminal Law
(Northern Ireland) Act 1967, based on the fact that he had been aware
of the attack beforehand and had not taken any steps to prevent it.
- With
the exception of McCaughey, the other officers received suspended
prison terms. In sentencing, Lord Lowry stated inter alia:
“... It does not seem realistic to believe that
after all that they have endured – some with their careers in
ruins, others with their careers in jeopardy- that they require much
by way of deterrent or by way of reform, and no proper sentence which
I pass will make an impression on terrorists while other members of
the police force are no doubt already embarrassed, sufficiently
embarrassed and shocked by what has happened in these cases and been
seen to happen to their colleagues. ... I must remember that whatever
sentence is just it would follow that it would be imposed on a
different and lower scale from that appropriate to terrorists, no
matter whichever side, whose aim is to achieve their political ends
by violence and to attack the very fabric of society.”
- It
had been advanced by the defence and accepted by the trial judge that
McCaughey had only aimed to shoot the applicant in the legs and had
done so.
- McClure
had also been facing charges in relation to his involvement in the
attack on Donnelly's Bar, Silverbridge, in 1975 in which three people
had been killed (see application no. 32457/04, Brecknell v. the
United Kingdom). These charges were later dropped.
- In
the course of the investigation in 1978, McCaughey made revelations
giving rise to investigations in eleven specific cases, some of which
were linked in terms of the identities of those involved, the modus
operandi or by virtue of the ballistic examinations of weapons used.
Nine suspects were arrested in total, including five police officers,
and all were eventually charged with offences.
- One
of those implicated was a police officer John Weir who was named as
having been involved in the murder of a shopkeeper called Strathearn
in Ahoghill in April 1977: he was convicted for that murder in June
1980 and sentenced to life imprisonment. The Government stated that
both McCaughey and Weir refused to name the two loyalist
paramilitaries also involved with them in the murder unless they
received immunity from prosecution. The police and prosecuting
authority took the decision prior to the trial not to enter into any
process of bargaining with Weir and McCaughey. While both were
approached by the police after their convictions to see if at that
stage they would give evidence against the loyalist paramilitaries,
each again refused to do so unless there was something in it for
themselves. The Government stated that during the period in which
Weir was detained he was interviewed on a large number of occasions.
At no time did he implicate himself or others in any offence other
than the Strathearn murder.
C. The Weir allegations and the response of the
authorities
- On
1 February 1993 John Weir was released from prison on licence. In
January 1999, he made a statement to a journalist alleging RUC and
Ulster Defence Regiment ("UDR") collusion with loyalist
paramilitaries from the Portadown area in the mid-1970s. This
statement was published in the Sunday Times newspaper in March 1999.
It was obtained by the Patrick Finucane Centre, a human rights
non-governmental organisation in Derry (“the Centre”).
- John
Weir's statement made detailed allegations about security force
collusion with loyalist paramilitaries in a series of incidents. He
alleged inter alia that RUC Reserve Constable Laurence McClure
had told him that the murder of the Reavey family members was carried
out by Robert McConnell, a member of the UDR, Laurence McClure,
Johnny Mitchell, another Reserve Constable in the RUC and McClure's
brother who was not a member of the security forces. The statement
also made links between this incident and other attacks allegedly
carried out by members of the security forces, both RUC and UDR, and
loyalist paramilitaries. This group used the farmhouse in Glennane
owned by James Mitchell, a RUC reservist, as a base from which to
carry out attacks on Catholics and nationalists. Other attacks
allegedly included the murder of Colm McCartney and Sean Farmer at a
bogus vehicle checkpoint in August 1975 (see application no.
34575/04); the attack on Donnelly's Bar in which Trevor Brecknell,
Michael Donnelly and Patrick Donnelly were killed (see application
no. 32457/04); and the murder of Joseph, Barry and Declan O'Dowd
and wounding of Barney O'Dowd (see application no. 34622/04). Weir
also linked these attacks to the Dublin and Monaghan bombings in
which 33 people were killed in the Republic of Ireland.
- On
or about 10 June 1999, RTE, an Irish television channel, broadcast a
television programme that contained allegations of security force
involvement in a number of deaths, including that of Trevor
Brecknell. Weir made allegations on that programme that members of
the RUC and UDR were directly involved in the attack on Donnelly's
Bar. A BBC Spotlight programme produced a similar documentary dealing
with these allegations.
- These
allegations attracted considerable attention on both sides of the
Irish border and became the subject of police investigation in both
jurisdictions. The Government stated that the police investigation in
Northern Ireland was focussed on determining whether Weir's
allegations should be assessed as sufficiently credible to require a
full investigation. They obtained from the journalist an edited
transcript of the interview with Weir. While his whereabouts were
unknown to the RUC, Weir met with senior Irish police officers at the
Irish Embassy on 15 April 1999. A copy of his statement was provided
by the Garda to the RUC, along with a further statement made by Weir
to another journalist dated 3 February 1999. The police analysed the
available materials and sought to identify the personalities to be
interviewed. It became apparent that some had died and that others,
living abroad, could not be traced. A series of seven interviews were
conducted, under cautions, between July and December 2001, of those
individuals central to Weir's account who could be traced. No charges
were preferred. The interviews followed the format of Weir's
allegations being put to the interviewee for his or her response. The
predominant response was denial of any involvement and claims that
Weir had been untruthful. No admissions were made by any interviewee.
Interviews were also conducted with less central personalities and
with police officers involved in interviewing Weir in 1978. The
latter stated that Weir had not mentioned the matters now being
alleged.
- Meetings
were held regularly with RUC counterparts in the Republic of Ireland.
The RUC co-operated also with the judicial inquiry established in the
Republic of Ireland into the Dublin and Monaghan bombings (see the
description of the inquiry in the case of Brecknell referred
to above). Amongst matters about which the RUC team provided
information to the inquiry was ballistics information which linked
some of the weapons used to more than one incident. In February 2000
a substantial report was compiled by the RUC for the Garda dealing
with Weir's allegations. It profiled Weir and dealt inter alia
with a description of the 1978 investigation into McCaughey, Weir and
others. It concluded that the investigation would continue but that
his credibility was in doubt. According to the Government, despite
inquiries being conducted, Weir's whereabouts could not be traced.
This report was not disclosed as the investigation was continuing. An
internal RUC report dated 27 February 2001 concluded that it would be
necessary to interview Weir before any view could be finalised in
respect of the credibility of his allegations: such interview was not
possible as his whereabouts were not known. The report noted the
absence of any previous mention of the allegations before 1999 and
that much of what he said was hearsay and speculation. Enquiries made
of the British Embassy in Nigeria (where he had a known address) and
the criminal intelligence service and others failed to locate Weir.
Contact was made with the Garda and the secretariat of the Inquiry
into the Dublin and Monaghan bombings without positive result.
- The
Serious Crime Review Team (“SCRT”) was established in
March 2004, with responsibilities including the review of all
historical murders by way of case assessment for evidential and
investigative opportunities.
- Unlike
the other case (Brecknell, Reavey, O'Dowd and McCartney, cited
above), the Rock Bar case was not referred to the SCRT. This was
because it was not a murder case and there had been four convictions.
Nonetheless because of connections with other cases, the case was
also referred to the Historical Enquiry Team (HET). The HET director
of Investigations, Detective Chief Superintendent James of the London
Metropolitan Police Force, took over personal supervision of the
investigation which has progressed through the first three of five
stages of the HET process (collection of all relevant material;
assessment of the investigations to date; review of evidence, with
intelligence and open and non-police sources, together with a meeting
with the families of the victims of the attack). As a number of
investigative opportunities were identified and to be followed up,
the case was to continue to be processed by HET, which had been put
in touch with Weir by the Centre. The Government submitted that if
any evidence of police involvement in the murders was found, the
Office of the Police Ombudsman for Northern Ireland would then become
involved. The Government have provided recent information that Weir
finally agreed to meet with the HET in Dublin; he refused, however,
to make a written statement or to give evidence in court.
There
has been contact between the police and the applicant, as well as
with the Centre acting on behalf of a number of concerned families.
In particular, there were meetings in September 2002 with Detective
Chief Inspector Paterson, and a meeting with the Chief Constable in
June and August 2004; in May 2006, Detective Chief Superintendent
James met the applicant together with the person who owned the bar at
the time; and there has also been extensive correspondence with the
families or their representatives.
D. Application for judicial review concerning the
inadequacy of the investigation
See
Brecknell, cited above (§§ 39-41).
E. Reports of the Independent Commissions of Inquiry
(Republic of Ireland)
See
Brecknell, cited above (§§ 42-49).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
- The
applicant complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of the
shooting in which he was seriously injured after allegations were
made in 1999 by John Weir as to RUC involvement, invoking Article 2
of the Convention which provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”.
A. The parties' submissions
- The
parties' submissions essentially repeat those made in the Brecknell
case (cited above, §§ 54-59, 60-64).
B. The Court's assessment
- The
Court refers to its statement of principles and analysis as set out
in Brecknell (cited above, §§ 65-81). For the same
reasons it concludes that the investigative response to Weir's
allegations lacked the requisite independence in its early stages
when under the control of the RUC. There has been, in that respect
alone, a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In
view of its findings above, the Court finds that it is not necessary
to examine separately the complaint under this Article.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed non-pecuniary damage for the suffering and distress
caused by the State's failure to conduct an effective official
investigation into the circumstances of the shooting.
- The
Government submitted that even if there was a breach of the
procedural obligation it would not be appropriate to apply the same
scale as in cases of procedural breaches in the immediate aftermath
of a use of lethal force. They considered a finding of a violation
should be held in itself to constitute just satisfaction.
Alternatively, any award should be modest.
- The
Court has found that the national authorities failed in their
obligation to provide a properly independent investigative response
in the initial stages following the allegations made by John Weir. In
the circumstances, it considers that the applicant sustained some
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Making an assessment on an
equitable basis, the Court awards the sum of EUR 5,000.
B. Costs and expenses
- The
applicant claimed GBP 10,298.29 for solicitors' costs, inclusive of
value added tax (VAT) for this application.
- The
Government submitted that the overall solicitors' charging rate (with
an uplift of 50% for care and conduct) was excessive, and half the
amount was appropriate. The overall hours claimed were also excessive
given that similar issues arose in the four other cases considered at
the same time. They proposed no more than GBP 20,000 for solicitors'
costs in total for all four cases together.
- The
Court recalls that only legal costs and expenses found to have been
actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see,
among other authorities, Nikolova v. Bulgaria [GC], no.
31195/96, 25 March 1999, § 79, and Smith and Grady v. the
United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, §
28, ECHR 2000-IX).
- The
Court has already awarded EUR 29,000 for solicitors' costs in the
Brecknell case (§ 92). Having regard to the fact that
only the initial presentation of facts in this case required separate
treatment from the lead application, it awards the applicant EUR
5,000, which figure is inclusive of VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 2 of the Convention due to the lack of independence of
the RUC during the initial stages of the investigation begun in 1999;
- Holds that it is not necessary to examine
separately the applicant's complaint under Article 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into pounds sterling at the rate applicable
at the date of settlement;
in respect of
non-pecuniary damage, EUR 5,000 (five thousand euros);
in respect of costs
and expenses, EUR 5,000 (five thousand euros);
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
