Re McKerr

JurisdictionUK Non-devolved
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOFFMANN,LORD RODGER OF EARLSFERRY,LORD BROWN OF EATON-UNDER-HEYWOOD
Judgment Date11 March 2004
Neutral Citation[2004] UKHL 12
CourtHouse of Lords
Date11 March 2004
In re McKerr (AP)
(Respondent) (Northern Ireland)

[2004] UKHL 12

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Steyn

Lord Hoffmann

Lord Rodger of Earlsferry

Lord Brown of Eaton-under-Heywood

HOUSE OF LORDS

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

This is a test case. It arises out of the absence of adequate public investigations into some fatal shootings in Northern Ireland over 20 years ago. This particular case relates to the death of Mr Gervaise McKerr. His son Jonathan seeks an order compelling the Secretary of State for Northern Ireland to hold an effective investigation into the circumstances of his father's death. He bases his claim primarily on the provisions of the Human Rights Act 1998 even though his father died many years before the Act came into force. He also advances a claim based on the common law.

The deaths

2

Gervaise McKerr died on 11 November 1982. He was driving a Ford Escort car in East Lurgan with two passengers, Eugene Toman and Sean Burns. All three men were shot dead by members of a unit of the Royal Ulster Constabulary. Many of the facts surrounding the deaths are disputed. But it seems clear that the men were not armed and that over 100 rounds were fired at the car.

3

This was not an isolated incident. Two further fatal shooting incidents occurred soon afterwards, both involving the RUC in County Armagh. On 24 November 1982 Michael Tighe was shot dead and Martin McAuley seriously wounded. On 12 December 1982 Peter Grew and Roderick Carroll were shot and killed. These six fatal shootings occurred amid allegations that some members of the RUC were operating a shoot-to-kill policy against suspected terrorists.

4

Currently nine cases, including proceedings brought by the next of kin of Eugene Toman and Sean Burns, are pending in the courts of Northern Ireland awaiting the outcome of this appeal. In addition numerous requests have been made to the police and the Director of Public Prosecutions of Northern Ireland for new investigations into deaths involving the police or security forces many years ago. This surge of activity has been prompted by four judgments given by the European Court of Human Rights in May 2001 and the government's response to them.

The investigations

5

The issues arising on this appeal before your Lordships are points of law. But I must first summarise briefly the protracted history of the steps taken by the United Kingdom authorities to investigate the circumstances of the death of Gervaise McKerr. A fuller record can be found in the judgment of the European Court of Human Rights in McKerr v United Kingdom (2002) 34 EHRR 20, paras 11-61. The history extends over twelve years, from November 1982 to September 1994, and falls essentially into three parts. First, criminal proceedings: one police officer was charged with the murder of Eugene Toman, a passenger in the car when the shooting occurred, and two other police officers were charged with aiding, abetting, counselling and procuring the officer to commit that offence. The trial took place between 29 May 1984 and 5 June 1984. At the end of the trial all three officers were acquitted on the direction of the judge.

6

Second, a police investigation was conducted, initially by John Stalker, then Deputy Chief Constable of the Greater Manchester Police Force, and thereafter by Colin Sampson, Chief Constable of the West Yorkshire Police. An interim report was followed by a lengthy final report presented in three sections, in October 1986, March 1987 and April 1987. On 25 January 1988 the Attorney General made a statement in Parliament in which he said that in the public interest no prosecutions would result from the Stalker/Sampson reports.

7

Third, at the conclusion of the criminal trial an inquest was opened by the Armagh coroner on 4 June 1984. It was subsequently adjourned to await completion of the Stalker/Sampson investigation and because of two sets of judicial review proceedings. Both sets of proceedings came to your Lordships' House: see McKerr v Armagh Coroner [1990] 1 WLR 649 and R v Attorney General for Northern Ireland, ex p Devine [1992] 1 WLR 262. The inquest resumed in May 1992 but was adjourned again later in the same month. On 31 January 1994 the inquest was closed and the jury discharged. The inquest was re-opened on 22 March 1994. The coroner said the public had a proper interest in knowing whether any further relevant evidence had come to light. On 5 May 1994 the Secretary of State issued a public interest immunity certificate stating that disclosure of the Stalker/Sampson report would cause serious damage to the public interest. On 8 September 1994 the coroner abandoned the re-opened inquest. He could no longer hope to achieve his purpose in re-opening the inquest.

The application to Strasbourg

8

Meanwhile on 7 March 1993 Gervaise McKerr's widow lodged an application with the European Court of Human Rights. After her death the application was continued by Mr Jonathan McKerr. The applicant invoked article 2 of the Convention. He alleged that his father had been unjustifiably killed and that there had been no effective investigation into the circumstances of his death. This application proceeded simultaneously with three others, two of which concerned deaths at the hands of the security forces and the third an allegation of police complicity in a murder by paramilitaries.

9

The court gave its judgment in all four cases on 4 May 2001. In the McKerr case the court made no finding on the lawfulness or proportionality of the use of lethal force which killed Gervaise McKerr. Nor did the court reach any conclusions on the circumstances, including Gervaise McKerr's own activities, which led up to the killing. But the court found that the various investigatory proceedings disclosed a number of shortcomings. These included: lack of independence of the investigation carried out by the RUC; lack of public scrutiny and information to the victim's family concerning the independent (Stalker/Sampson) investigation, including lack of reasons for the failure to prosecute any police officer for perverting or attempting to pervert the course of justice; the inquest procedure did not allow verdicts or findings which might play an effective role in securing prosecutions in respect of any criminal which might be disclosed; no advance disclosure of witness statements at the inquest; the PII certificate had the effect of preventing the inquest examining matters relevant to outstanding issues; the police officers who shot Gervaise McKerr could not be compelled to attend the inquest as witnesses; the inquest proceedings did not start promptly, and neither they nor the Stalker/Sampson investigation proceeded with reasonable expedition.

10

The court held unanimously that article 2 of the Convention had been violated by failure to comply with the obligation, implicit in article 2, to hold an effective official investigation when an individual has been killed by the use of force: see (2002) 34 EHRR 20, paras 157-161. The court awarded Mr Jonathan McKerr £10,000 as just satisfaction in respect of the frustration, distress and anxiety he must have suffered. A finding of violation was not sufficient compensation.

11

The government duly paid the sum awarded. In response to the judgment the United Kingdom also presented a package of proposals to the committee of ministers of the Council of Europe. Under article 46(2) of the Convention the committee of ministers has responsibility for supervising execution of the judgment of the court. This includes considering what are the practicable steps a state should be required to take in order to make good the violations found by the court: see Finucane v United Kingdom (2003) 37 EHRR 29, para 89. The government's package did not include any proposal to carry out a further investigation into the death of Gervaise McKerr. The government's stance is that, subject to any ruling of the courts, it does not propose to take any steps to hold a further investigation. The committee of ministers has not yet ruled on the adequacy of the government's proposals as an effective implementation of article 2.

The present proceedings

12

Mr Jonathan McKerr was not disposed to accept this as an adequate governmental response to the judgment of the European Court of Human Rights. The government ought to fulfil its obligation under article 2 of the Convention and remedy the deficiencies in the investigations so far undertaken into his father's death. Armed with the rights newly afforded him by the Human Rights Act, Mr McKerr sought the assistance of the court in compelling the government to conduct an effective investigation, in the form of a further coroner's inquest. On 30 January 2002 he commenced these judicial review proceedings. The relief claimed comprises (a) declarations that the Secretary of State's continuing failure to provide an article 2 compliant investigation is unlawful and in breach of section 6 of the Human Rights Act 1998 and article 2 of the Convention, (b) a mandatory order compelling the Secretary of State to conduct an article 2 compliant investigation and (c) damages.

13

On 26 July 2002 Campbell LJ dismissed the application. The Human Rights Act 1998 did not have retrospective effect. But the obligation to hold a proper investigation into a pre-Act death continued until either the obligation was fulfilled or a competent court vindicated the right in some other way. In the present case the continuing obligation to hold an investigation compliant with article 2 came to an end when the European Court of Human Rights made a finding of violation of article 2 and ordered payment of just satisfaction to Mr Jonathan McKerr.

14

Mr Jonathan McKerr appealed, and on 10 January 2003 the...

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