European Court of Human Rights
| DOI | 10.1177/002201830206600605 |
| Date | 01 December 2002 |
| Published date | 01 December 2002 |
| Subject Matter | Article |
European Court
of
Human Rights
The
Positive
Obligation
to
Investigate
Loss of Life
McShane vUnited Kingdom (2002) 35 EHRR 23
In
July
1996
the
applicant's
husband,
Dermot
McShane,
had
been
in a
bar
close to
where
a
major
disturbance
was taking place in
which
demonstrators
were
using petrol
bombs
and
the
Army
and
Royal Ulster
Constabulary
(RUC)
were
using
baton
rounds.
On
leaving
the
bar
Mr
McShane
found
himself in
the
midst of a large
crowd
who
were
throw-
ing missiles at
the
police. As
baton
rounds
were
being fired,
some
of
the
crowd
found
shelter
behind
acommercial skip
and
alarge
hoarding.
An
RUC inspector at
the
scene
consulted
with
the
arriving
army
personnel
and
requested
that
the
barricades be
removed.
Private 'P',
the
driver
of
an
armoured
personnel
carrier (APC), was
instructed
to
advance
his
vehicle
towards
the
obstruction.
Mr
McShane
fell
under
the
hoarding
over
which
the
APC advanced. He
was
taken
to hospital
but
died shortly
afterwards.
The
RUC
conducted
an
investigation into
Mr
McShane's
death.
In
April 1998,
the
DPP
found
that
there
was insufficient evidence to
provide a
reasonable
prospect of conviction for
any
offence of
murder,
manslaughter
or
dangerous
driving. An inquest,
due
to begin in 1999,
was
still
pending,
as
were
civil proceedings
which
the
applicant
had
brought
against
the
Ministry of Defence,
the
Chief Constable of
the
RUC
and
the
Secretary of State for
Northern
Ireland for alleged negligence
and
breach
of
statutory
duty. The RUC also lodged a
complaint
with
the
Law Society of
Northern
Ireland for
an
alleged
breach
of
an
undertaking
of confidentiality by Mrs C,
the
applicant's solicitor in
the
inquest,
relating to materials
which
the
applicant's representatives before
the
European
Court
of
Human
Rights
had
included
in
their
written
observa-
tions.
The
complaint
was
dismissed as
unfounded.
The
applicant claimed
that
a
number
of Articles of
the
European
Convention
on
Human
Rights
had
been
breached.
The first allegation
was
that
Article 2
had
been
violated. Article 2states that:
1. Everyone's right to life shall be protected 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
...
The
applicant
submitted
that
her
husband
had
been
intentionally
killed.
Alternatively,
she
submitted
that
the
death
of
her
husband
was
the
result of
an
unnecessary
and
disproportionate
use of force by
the
secu-
rity services.
Furthermore,
she
claimed
that
no effective or
prompt
investigation
had
been
carried
out
into
her
husband's
death,
and
that
the
RUC investigation
was
inadequate
and
flawed
through
its lack of
independence.
497
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