Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life)

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicants were born in 1950 and 1948 respectively. They live in Raduzhnoye, in the Grozny district, Chechnya. The applicants are the father and aunt of Aslan Mudayev, who was born in 1985, and Mokhmad Mudayev, who was born in 1982. The first applicant had a third son, Mr Akhmad Mudayev, who was killed in July 2003.

On 29 January 2003 Russian military servicemen conducted a special operation in the village of Raduzhnoye in the Grozny district of Chechnya. More than twenty persons were apprehended as a result of the operation, including Aslan and Mokhmad Mudayev and another of the applicants' relatives, Mr Islam A. At the material time the village was under the full control of the federal forces.

At about 8 a.m. on 29 January 2003 the first applicant and his sons Aslan and Mokhmad Mudayev and other relatives, including Mr Israil M. and Mr Islam A., were in their family home situated in Raduzhnoye. The first applicant heard noise coming from the street and looked out of the window. He saw a group of armed men in camouflage uniforms and masks running into his yard. The men entered the house and ordered everyone to lie face down on the floor. They neither introduced themselves nor produced any documents.

The intruders ordered the first applicant to hand over his family members' passports and the family photographs. Upon receiving the documents and the photographs, the men took Aslan Mudayev, Mokhmad Mudayev and the first applicant's nephew Mr Islam A. outside.

The first applicant attempted to follow his relatives, but the armed men in the yard threatened to kill him. Meanwhile, the applicant's sons and nephew were put in a grey UAZ car (“таблетка”).

Sometime later the first applicant managed to go outside and saw a convoy of ten to twelve vehicles, including a grey UAZ car, two or three khaki coloured UAZ-469 cars and an APC (armoured personnel carrier) driving away in the direction of Grozny.

On the following day of 30 January 2003 all persons detained during the special operation, except for Aslan and Mokhmad Mudayev, were released.

Immediately after the apprehension of Aslan and Mokhmad Mudayev the applicants and their relatives started searching for them.

The applicants' relative, Mr Israil M., who was at the first applicant's house during the abduction, immediately followed the convoy of military vehicles in his VAZ car with two female relatives. On the way to Grozny the abductors' vehicles split into two groups. One of them, comprised of the APC and several UAZ cars, drove in the direction of the nearby village of Znamenskoye in the Nadterechniy district, while the other proceeded in the direction of Grozny.

When the group arrived at Znamenskoye, the vehicles drove to the building of the Nadterechniy district department of the Federal Security Service (“the Nadterechniy district department of the FSB”) and the Nadterechniy district department of the interior (“the Nadterechniy ROVD”). Some of the vehicles drove onto the agencies' premises.

Mr Israil M. and relatives of other men apprehended during the operation in Raduzhnoye decided to wait at the entrance to the FSB building. Several hours later Mr Israil M. managed to talk to the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. (also known as Mairbek Kh.; in the documents submitted he was also referred to as Mr M. Kh.) The latter told him that he would not release his relatives until two prosecution officials who had been abducted several days ago had been returned. He told Mr Israil M. that he knew about the involvement of the first applicant's other son, Akhmad Mudayev, in the abduction of the two officials. The officer threatened that if within the next two days Mr Israil M. did not return the two prosecutors or bring Akhmad Mudayev to their office, he would hand over Mr Israil's apprehended relatives to military servicemen in Khankala, the main base of the Russian federal forces in Chechnya.

Subsequently the applicants and their relatives spoke with Akhmad Mudayev, who told them that he had not participated in the prosecutors' abduction and refused to go to the district department of the FSB.

Within the next five or six months Mr Israil M. had regular meetings with Mr Mayrbek Kh. The latter insisted on his demands.

On 3 July 2003 the first applicant's elder son Akhmad Mudayev was killed in a skirmish. After that Mr Mayrbek Kh. told the first applicant that at some point Russian military forces had taken Aslan and Mokhmad Mudayev from his department under false identities and that he did not have any information concerning the brothers' whereabouts.

The first applicant's nephew, Mr Islam A., who had been apprehended with Aslan and Mokhmad Mudayev, was released on 30 January 2003. Mr Islam A. told the applicants that he had been put in one cell with Aslan and Mokhmad Mudayev. In the evening of 29 January 2003 he had been questioned by Mr Mayrbek Kh., the head of the Nadterechniy district department of the FSB.

In February 2003 Mr Mayrbek Kh. arrived at the mosque of the Raduzhnoye village. He told a number of local residents gathered there that Aslan and Mokhmad Mudayev had been detained in the FSB building. One of the local residents, Mr Arsanuka M., asked him whether any criminal charges had been brought against the brothers. In response the officer told him that he would release Aslan and Mokhmad Mudayev only if their elder brother Akhmad surrendered to the authorities.

Mr Aslan A., who had been detained for some time with the Mudayev brothers in the FSB building and released, told the applicants that during the detention, Aslan and Mokhmad Mudayev had been beaten and questioned separately from each other.

On 10 May 2003 (in the documents submitted the date 12 May 2003 was also given) an explosion occurred in the building of the Nadterechniy district department of the FSB and partially destroyed it. In the evening of 10 May 2003 Aslan and Mokhmad Mudayev were taken from the building to an unknown destination. There has been no news about the brothers ever since.

In support of their statements the applicants submitted: an account by the first applicant (undated); an account by Mr Israil M. dated 12 November 2003; an account by Mr Islam A. dated 14 November 2003; an account by Mr Khavashi K. (undated); an account by Mr Arsanuka M. (undated); an account by Mr Amin K. (undated) and copies of documents received from the authorities.

The Government did not challenge most of the facts as presented by the applicants. According to their submission of 25 July 2008 “... on 29 September 2003 an investigator of the Grozny district prosecutor's office initiated an investigation of criminal case no. 42172 opened in connection with the abduction of Aslan and Mokhmad Mudayev under Article 126 § 2 of the Criminal Code ...”.

In the same submission, referring to the contents of criminal case no. 42172, the Government further stated:

“... on 29 January 2003 in the village of Raduzhnoye in the Nadterechniy district of Chechnya officers of the Nadterechniy district department of the FSB conducted a special operation. The goal of the operation was the identification of persons who had abducted employees of the Chechnya prosecutor's office. In the course of the criminal investigation [of the Mudayev brothers' abduction] the head of the Nadterechniy district department of the FSB, Mr M. Kh., who was in charge of the operation, was questioned by the investigators.

[According to his statement] during the operation Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB in connection with the abduction of the officials from the Chechnya prosecutor's office. As a result of the questioning it had been established that Aslan and Mokhmad Mudayev had not been involved in the abduction of the prosecution officials. After that Aslan and Mokhmad Mudayev had been released.”

The Government also submitted:

“... on 12 May 2003 a terrorist act was committed in the village of Znamenskoye in the Nadterechniy district. As a result, the building of the Nadterechniy district department of the FSB was partially destroyed. Procedural documents, explanations and statements by Aslan and Mokhmad Mudayev were [also] destroyed.”

The applicants and their relatives also contacted, both in person and in writing, various official bodies, such as the Chechen administration, military commanders' offices, departments of the interior and prosecutors' offices at different levels, asking for help in establishing the whereabouts of Aslan and Mokhmad Mudayev. The applicants retained copies of a number of those complaints and submitted them to the Court. An official investigation was opened by the local prosecutor's office. The relevant information is summarised below.

According to the applicants, from January 2003 to August 2003, on a number of occasions, they complained in person to the Nadterechniy district prosecutor's office about the abduction of their relatives.

On 22 September 2003 a local human rights organisation complained on behalf of the applicants and their relatives to the Grozny district prosecutor's office about the abduction of Aslan and Mokhmad Mudayev.

On 29 September 2003 the Chechnya prosecutor's office forwarded the applicants' complaint about the abduction of their relatives to the Grozny district prosecutor's office.

On 15 January 2004 the applicants' representatives wrote to the Chechnya prosecutor's office. They described in detail the circumstances of the Mudayev brothers' abduction during the special operation conducted by the Nadterechniy district department of the FSB on 29 January 2003. The letter stated that the brothers had been taken to the detention centre of the district department of the FSB; they had been detained there until 10 May 2003, when they had been taken away in an unknown direction. According to the information obtained by the applicants from the persons who had been detained together with Aslan and Mokhmad Mudayev from January to May 2003, the conditions of their detention had been inhuman; the brothers had been beaten, had marks of ill-treatment on their bodies and fallen ill. After May 2003, according to some witnesses, the conditions of their detention in another place had also been inhuman; the brothers had been severely beaten and bound by adhesive tape. According to the letter, the applicants and their relatives had spoken with the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. who had told them that the release of the two Mudayev brothers would be possible only in exchange for their elder brother Akhmad. The letter further stated that the applicants had complained about the arrest and detention of Aslan and Mokhmad Mudayev to a number of authorities, including the Nadterechniy district prosecutor's office, the Nadterechniy district department of the FSB, the Grozny district prosecutor's office and the Chechnya prosecutor's office. Referring to the European Convention on Human Rights the applicants requested the following information: on what grounds the Mudayev brothers had been arrested; whether any criminal charges had been brought against them and if so, what stage the criminal investigation was at; which authorities had issued the warrant for their arrest and where exactly the brothers had been detained. Finally, the applicants requested the authorities to ensure their safety and the safety of the witnesses to the abduction of Aslan and Mokhmad Mudayev.

On 11 February and 16 September 2004 the Chechnya prosecutor's office informed the applicants that on 29 September 2003 the Grozny district prosecutor's office had initiated an investigation into the abduction of Aslan and Mokhmad Mudayev.

On 28 April 2004 the Chechnya Department of Human Rights and Freedoms wrote to the Chechnya prosecutor's office. The letter stated that Aslan and Mokhmad Mudayev had been abducted on 29 January 2003 during an identity check.

On 22 May 2004 the Grozny district prosecutor's office granted the second applicant victim status in criminal case no. 42172 instituted in connection with the abduction of Aslan and Mokhmad Mudayev.

On 10 August and 28 October 2004 the military prosecutor's office of the United Group Alignment (the military prosecutor's office of the UGA) forwarded the applicants' complaints about the abduction to the Chechnya prosecutor's office for examination.

On 10 September 2004 the Grozny district prosecutor's office informed the applicants that the investigation in the criminal case had been suspended for failure to establish the identities of the perpetrators.

On 25 October 2004 the Grozny district prosecutor's office informed the Chechnya prosecutor's office that on 21 June 2004 the investigation in the criminal case had been suspended and that the investigators had been instructed to take investigating measures and that upon their completion the case would be transferred to the Nadterechniy district prosecutor's office for further investigation.

On 18 February 2005 the Grozny prosecutor's office informed the applicants that on that date they had resumed the investigation in the criminal case.

On 18 March 2005 the Grozny prosecutor's office informed the applicants that on that date they had suspended the investigation in the criminal case for failure to establish the identities of the perpetrators.

On 19 April 2005 the second applicant requested the Grozny district prosecutor's office to inform her about the results of the criminal investigation of the abduction and provide her with access to the investigation file.

On 5 May 2005 the first applicant complained to the Chechnya prosecutor's office. He stated that his two sons, Aslan and Mokhmad Mudayev, had been abducted on 29 January 2003 by representatives of the Nadterechniy district department of the FSB under the command of officer Mayrbek Kh., and that the investigation opened by the Grozny prosecutor's office had been ineffective. In particular, the applicant pointed out that the investigators had failed to comply with the court's decision of 30 December 2004 concerning the reopening of the suspended investigation and questioning of all persons involved in the abduction; that the investigation had been suspended several times in spite of the authorities' failure to establish the circumstances of the abduction. The applicant requested the Chechnya prosecutor's office to take over the investigation and to comply with the court's decision of 30 December 2004.

On 13 May 2005 the Chechnya prosecutor's office informed the first applicant that the investigation in the criminal case had been resumed.

In November 2004 the applicants lodged a complaint with the Grozny district court of Chechnya (the district court). They complained of unlawful suspensions of the investigation in the criminal case and a failure on the part of the authorities to take basic investigative measures. The applicants sought a ruling obliging the prosecutor's office to resume the investigation and question the witnesses of their relatives' abduction.

On 30 December 2004 the district court allowed the complaint. The court stated, inter alia, the following:

“... the court established that:

... from [the date of the opening of the criminal case] 29 September 2003 up to the present the investigation in criminal case no. 42172 was suspended three times and resumed twice owing to the applicants' numerous complaints.

On 30 November 2004 the investigator Zh. U. took the last decision to suspend the investigation for failure to establish the identities of the perpetrators; this decision was taken by him after 25 November 2004, that is, [shortly] after the applicants had lodged their court complaint about his actions.

Given the kind of approach the investigator has taken to the execution of his work duties, it is possible that the perpetrators [of the abduction] will not be established any time soon [...]the investigator did not carry out the written orders issued by the deputy district prosecutor on 25 October 2004 ... even though such orders were compulsory ...

In the course of the preliminary investigation it had been unequivocally established by whom and when the Mudayev brothers had been arrested and where they had been detained. From this it follows that the investigator and the supervising prosecutor must concentrate their attention on the identification of those who detained the brothers, on the examination of the lawfulness and the grounds for their detention, [and] the establishment of the actual place of their detention, which was carried out without lawful grounds ...

The court decided:

To recognise as unlawful the actions of the investigator Zh.U. concerning the suspension of the investigation in criminal case no. 42182 under Article 208 § 1 of the Criminal Procedure Code [for failure to establish the identities of the perpetrators];

To oblige the investigator to carry out in full the written orders issued by the [supervising] prosecutor ...;

To question all persons involved in the arrest of the Mudayev brothers in violation of Articles 91 and 92 of the Criminal Procedure Code [grounds and procedure for detention];

To examine the lawfulness and the grounds for the Mudayev brothers' detention without a court order, [which took place] in violation of Article 108 of the Criminal Procedure Code [arrest procedure] ...”

On 11 May 2005 the second applicant complained to the district court that the investigation into the abduction had been ineffective. She described in detail the circumstances of the abduction and pointed out that Aslan and Mokhmad Mudayev had been unlawfully detained as hostages in the Nadterechniy district department of the FSB. The applicant stated that the investigation into the abduction had been suspended several times and that the last suspension had taken place on 13 May 2005. The applicant sought a ruling obliging the prosecutor's office to resume the investigation and transfer it to the Chechnya prosecutor's office.

On 8 June 2005 the district court rejected the applicant's complaint. On 16 August 2005 this decision was upheld on appeal by the Chechnya Supreme Court.

The Government submitted that the investigation of the abduction of the applicants' relatives had commenced on 29 September 2003 upon receipt on 22 September 2003 of a complaint by the applicants' relative Mr I.M. about the abduction of Aslan and Mokhmad Mudayev on 29 January 2003.

On 27 September 2003 the investigators conducted a crime scene examination at the first applicant's house. Nothing was collected from the scene.

On 29 September 2003 the first applicant was granted victim status in the criminal case and questioned. According to a copy of his witness statement submitted to the Court, the applicant stated that at about 8.15 a.m. on 29 January 2003 a group of fifteen masked men in military uniforms armed with automatic weapons had broken into his house. The men had put everyone up against the wall, and then ordered everyone to lie on the floor face down. After that they had demanded everyone's passports and checked them. The men had returned all the documents, expect for the passports of his sons Aslan and Mokhmad Mudayev. Immediately after the men had taken the applicant's two sons outside, put them in a light-coloured UAZ vehicle ('tabletka') and taken them to the settlement of Znamenskoye in the Nadterechniy district of Chechnya. When the applicant had asked the men about the reasons for the arrest of his sons, the men had not explained anything. They had told him and his relatives to stay inside, threatening to shoot if anyone went outside. According to the applicant, the abductors had arrived at his house in a light-coloured UAZ vehicle and two grey GAZ vehicles; the cars did not have registration numbers. At some point later the applicant had asked the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh. about his sons. The latter had told him that Aslan and Mokhmad Mudayev had been detained on the premises of his department. The applicant had not received any other information about his sons' whereabouts.

On 22 May 2004 the investigators granted the second applicant victim status in the criminal case.

According to the Government, the investigators also questioned a number of witnesses. Without providing any of the relevant witness statements and the dates, the Government summarised their testimonies as follows.

On an unspecified date the investigators questioned the applicants' relative, Mr I.B., who stated that on 29 January 2003 he had been in the first applicant's house with his relatives. In the morning a group of armed masked men had broken into the house, checked identity documents and taken him, Aslan and Mokhmad Mudayev in a UAZ car to the village of Znamenskoye in the Nadterechniy district. There they had been placed in one cell. In the evening of the same day the witness had been interrogated twice. The first questioning had been conducted by Mr M.Kh. who had asked him about Akhmed Mudayev. The second interrogation was conducted by a man who had spoken unaccented Russian, in the presence of a Chechen man. In the evening of 30 January 2003 the witness had been released, whereas Aslan and Mokhmad Mudayev remained in detention.

On an unspecified date the investigators questioned the second applicant. She stated that on 29 February 2003 a special operation had been conducted in Raduzhnoye by the local FSB office and that Mr Mayrbek Kh. had been in charge of it. As a result of this operation more than twenty young men had been arrested in the settlement, including her nephews Aslan and Mokhmad Mudayev and Mr I.A. Many of the detainees had been released in the evening on the same day. On 30 January 2003 her nephew Mr I.A. had also returned home. He had told her that he had been detained with Aslan and Mokhmad Mudayev in the FSB office.

On unspecified dates the investigators also questioned twelve other witnesses, including the first applicant, Mr A.M., Mr I.M., Mr Yu.V., Mr A.D., Mr S.B., Mr Sh.A., Ms A.B., Ms B.O., Mr T.A., Ms T.M., Mr A.K. and Mr S.Z., who provided statements similar to the one given by the second applicant.

On an unspecified date the investigators questioned the applicants' neighbour, Ms Kh. D., who stated that at about 9 a.m. on 29 January 2003 three grey UAZ vehicles without registration numbers had arrived at the first applicant's house. A group of armed men in camouflage uniforms and masks had gotten out of the cars. The men had taken the first applicant's two sons and driven them away in the direction of the Nadterechniy district.

On an unspecified date the investigators also questioned Mr I.M., who provided a statement similar to the one given by Ms Kh.D.

On an unspecified date the investigators questioned Ms T.M. who stated that at about 9 a.m. on 29 January 2003 she had been driving with her relatives through the area situated next to the bridge in the village of Pobedinskoye. There she had seen several UAZ cars and APCs which were driving in the direction of the village of Znamenskoye in the Nadterechniy district. After the witness had arrived at Pobedinskoye, she had learnt from the local residents that earlier in the morning a group of armed men in camouflage uniforms under the command of the head of the Nadterechniy district department of the FSB, Mr M. Kh., had taken Aslan and Mokhmad Mudayev away; that the relatives of the abducted men had followed the abductors in cars and that they had seen that the two brothers had been taken to the premises of the Nadterechniy district department of the FSB.

On unspecified dates the investigators also questioned three other witnesses, including Ms M.Yu., Ms. Z.K. and Ms L.A., who provided statements similar to the one given by Ms T.M.

On an unspecified date the investigators questioned Mr Z.B., who stated that he had known Aslan and Mokhmad Mudayev since childhood. On 29 January 2003 he had learnt that the two brothers had been arrested as a result of the operation conducted under the command of the head of the Nadterechniy district department of the FSB, Mr M. Kh. According to the witness, the elder brother of the arrested men, Akhmed, had been a member of illegal armed groups but Aslan and Mokhmad had not been involved in illegal activities. At some point Akhmed Mudayev had been killed by the OMON (special task force) police officers during a skirmish in the village of Dolinskoye.

On an unspecified date the investigators questioned the applicants' relative Mr E.M., who stated that his nephews Aslan and Mokhmad Mudayev had been arrested on 29 January 2003 by representatives of the Nadterechniy district department of the FSB in the presence of its head, Mr Mayrbek Kh. On the following day many of those who had been detained were released. However, Aslan and Mokhmad Mudayev did not return home.

On an unspecified date the investigators questioned a police officer, N.M., who stated that in the spring of 2003 he had worked as the district police officer in the settlement of Podebinskoye in the Grozny district. About two months prior to that, in the winter of 2003, Aslan and Mokhmad Mudayev had been brought to the Nadterechniy district department of the FSB.

On unspecified dates the investigators also questioned Mr G.R. and Mr B.S., who had provided statements similar to the above statement by Mr N.M.

On an unspecified date the investigators questioned Mr E.A. who stated that about two or three weeks after the apprehension of Aslan and Mokhmad Mudayev he had been detained on the premises of the FSB office in the Nadterechniy district and that at the time he had not seen the applicants' relatives there.

On an unspecified date the investigators questioned Mr S.Z., who stated that in January 2003 about twenty of his fellow villagers, including Aslan and Mokhmad Mudayev, had been detained by representatives of the FSB in the villages of Raduzhnoye and Dolinskoye. On 26 April 2003 he had been arrested by representatives of the Nadterechniy district department of the FSB and was released some time later. During his detention at the FSB office he had not seen the applicants' relatives.

On an unspecified date the investigators questioned the head of the Nadterechniy district department of the FSB Mr Mayrbek Kh., who stated that after two staff members of the Chechnya prosecutor's office had been kidnapped their department had taken operational search measures aimed at establishing the identity of the perpetrators. As a result, Aslan and Mokhmad Mudayev had been brought over to the FSB office and questioned. After it had been established that the two brothers had not been involved in the abduction, Aslan and Mokhmad Mudayev had been released. The witness did not know why the brothers had not returned home. The officer further stated that Aslan and Mokhmad Mudayev had signed papers to the effect that they had nothing against the officers of the FSB; however, these documents had been later destroyed. Relatives of Aslan and Mokhmad Mudayev had contacted the witness on a number of occasions asking for assistance in establishing the brothers' whereabouts. According to the witness, he had had information concerning the possible absconding of Aslan and Mokhmad Mudayev from Chechnya to Ingushetia, where their brother Akhmed, an active member of illegal armed groups, had been hiding. In the summer of 2003 Akhmed Mudayev had been killed in a shoot-out. The witness had no information concerning the whereabouts of Aslan and Mokhmad Mudayev.

The investigators requested information from the Nadterechniy district court concerning arrest orders issued by the court as of 29 January 2003 in respect of Aslan and Mokhmad Mudayev. According to the district court, no such orders had been issued by it.

The investigators also requested information from the head of the Nadterechniy district administration concerning the list of persons who had suffered as a result of the terrorist attack committed on 12 May 2003 in Znamenskoye. The list of victims did not contain the names of Aslan and Mokhmad Mudayev.

According to the Government, the investigation failed to establish the whereabouts of Aslan and Mokhmad Mudayev; their corpses were not found. No evidence demonstrating the involvement of federal forces in their disappearance was found.

According to the documents submitted by the Government, between 29 September 2003 and 25 July 2008 the investigation was suspended and resumed on at least three occasions, that is, on 21 June 2004, 8 June 2005 and 11 February 2008, and it has so far failed to establish the identities of the perpetrators.

From the Government's submission it follows that on 16 July 2008 the head of the Investigations Department of the Investigations Committee at the Office of the Russian Prosecutor General decided that the investigation of the abduction of the applicants' relatives should be carried out by a joint group of investigators from the prosecutor's office and the military investigations department.

The Government further submitted that all the measures envisaged under the domestic law were being taken by the investigators and that the applicants had been duly informed of all decisions taken during the proceedings.

Despite specific requests by the Court the Government did not disclose most of the contents of criminal case file no. 42172, providing only copies of several notifications to the applicants of the suspension and reopening of the proceedings and a copy of the witness statement given by the first applicant on 29 September 2003. The Government stated that the investigation was in progress and that disclosure of the documents would be in violation of Article 161 of the Code of Criminal Procedure, since the file contained data concerning the witnesses or other participants in the criminal proceedings.

For a summary of the relevant domestic law see Akhmadova and Sadulayeva v. Russia (no. 40464/02, §§ 67-69, 10 May 2007).


CASE OF KELLY AND OTHERS v. THE UNITED KINGDOM

Violation of Art. 2;No violation of Art. 6;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The facts of the case, as submitted by the parties and which may be deduced from the documents, may be summarised as follows. The applicants accepted that the summaries below are an accurate reflection of the written statements made by the official personnel involved, without making any admission as to the credibility, consistency and veracity of these statements.

Following a briefing that there was likely to be a terrorist attack on Loughgall station of the Royal Ulster Constabulary (the RUC) in County Armagh on 8 May 1987, twenty four soldiers and three RUC officers arrived at the station in the early hours of that day. Under the command of Soldier A, the soldiers positioned themselves in six locations surrounding the RUC station. Soldiers A, B, C, D, E and F were dressed in plain clothes and remained inside the RUC station (Position 1). All the other soldiers wore military uniform. Soldiers G, H, I and J were positioned in a wooded area to the south of the Loughgall Road, near the junction with a road which is the first on the right from the police station going towards Armagh (Position 2). Soldiers K, L, M and N were positioned in a wooded area to the south of the Loughgall road, generally opposite No. 202 Loughgall Road (Position 3). Soldiers O, P, Q and R were instructed to position themselves in a wooded area to the south of the Loughgall Road, near what is known as Ballygasey Cottage (Position 4). Soldiers S, T and U were positioned in a wooded area to the rear of St Luke’s Church, on the south side of the Loughgall Road and to the east of the RUC station (Position 5). Soldiers V, W and X occupied a position in a wooded area to the north of the Loughgall Road, about 300 to 400 yards to the rear of the RUC station (Position 6).

Three members of the RUC, Constables A, B and C, were positioned inside the RUC station. The RUC station, which operated on a part-time basis only, was opened as normal at 9 a.m. on 8 May 1987. Police Constable A was in charge of the station, with B and C assisting him in the running of the station. The station was closed at 11 a.m., re-opened at 5 p.m. and closed again at 7 p.m.

At about 2.30 p.m. two hooded men hijacked a blue Toyota Hiace van from a Mr Corr, who was carrying out some work at the Snooker Club, Mountjoy Road, Dungannon, Co Tyrone. He was warned not to report the incident to the police for four hours. When the men left, Mr Corr phoned his employer, the van’s owner, and told him about the incident. The owner, Mr McGrath, waited four hours and reported the incident to Coalisland RUC at approximately 6.50 p.m.

At about 6 p.m., three armed men who said they were from the IRA entered the house of the Mackle family in Aghinlig Upper, Dungannon. The men said they wanted to borrow the digger and one of the sons was brought outside to fill it with diesel. At about 6.30 p.m., a vehicle pulled up outside and a fourth man arrived. It appears that a bomb containing 300 to 400 pounds of explosives was prepared in the yard of the house and placed in the bucket of the digger. At about 6.50 p.m. the digger was driven out of the yard and the other vehicle left shortly afterwards. At about 7.10 p.m. the remaining two gunmen left the house. Attempts by the family to phone the police failed as their phone and that of their neighbour were out of order. However, two of the sons eventually alerted a police patrol.

The soldiers reported a number of sightings of the blue Hiace van passing in front of the RUC station in both directions. Reports that the van had been hijacked, and that a digger was acting suspiciously in the area, were also received. Given this information and the knowledge that diggers had been used in previous terrorist attacks, the soldiers were on full alert when, between 7.15 and 7.30 p.m., the blue van came from the Loughgall direction and parked outside the station on the far side of the road facing Armagh.

A man, dressed in blue overalls and wearing a balaclava, emerged from the rear of the van and began to walk into the roadway. He raised his rifle and began to shoot at the RUC station. Soldiers A to E, who had positioned themselves at windows on the first floor of the station began to return fire without warning. Soldier F had set up the radio equipment in the rear ground floor room, and he remained there during the shooting. The driver then got out of the van and began to fire at the station. At least four more men emerged from the rear of the van and commenced firing at the station. Following continuous fire from the direction of the RUC station and from other soldiers, some of the IRA men began to take cover behind the van and others went to get into the back of the van. Soldiers A to E fired into the side of the van. Soldier B received a facial injury from flying glass after a window by which he was standing was broken by gunfire.

During this time, one of the IRA men drove the digger through the front gate of the station and Soldier B, having spotted this, fired a short burst at the driver. The digger stopped and shortly afterwards there was an explosion which caused masonry and dust to fly everywhere. Soldiers A to F and Constable A were unhurt by the blast, which damaged a large part of the station. Constable C was later treated for a fractured skull, damage to his left sinus, broken facial bone, a broken finger, a broken toe and bruising. Constable B also received some injuries. Constables B and C were led outside by Constable A and Soldier C, who administered first aid to them. Soldier F also left the station by the rear and did not take any part in the shooting.

Soldiers A, B, D and E moved towards the front of the RUC station and continued to fire at the men near the van, firing through the sides of the van when the men took cover inside, until there was no further movement from the gunmen. In his statement to the police, Soldier B stated that he approached the van to clear it of further danger to his life and those of his colleagues. As he looked into the back of the van, he saw two men and a number of weapons. One of the men made a sudden movement and Soldier B fired one round into him as it was his belief that it was the man’s intention to get one of the weapons. Soldier V stated that he approached the van with Soldier B, carrying out a visual check of the bodies. As he moved alongside the van, there was a movement in the area of a body that caught his eye. He took this as an immediate threat and fired one burst into the body.

Soldiers positioned in other areas also fired at the various gunmen once they had begun to shoot at the RUC station. Some of the soldiers stated that they came under fire. Shortly after the bomb exploded, Soldiers K and R observed what they thought was a gunman lying in the grass behind the police station. He failed to stand up when challenged to do so, and both soldiers fired several rounds at what turned out to be a large lump of wood. Moving down along the back of the houses towards the police station, Soldier K saw a man whom he apprehended, tied his hands and feet and handed him over to the RUC who arrested him. This man was a Mr Tennyson who was not involved in the attack. He happened on the shooting, and had left his car to seek cover when he was detained.

Soldier V fired at a man in a blue boiler suit crossing the road in a crouched manner. The man fell. He saw another man behind a wall and shouted to him to stand up. The man moved away quickly, then turned fully towards Soldier V who saw something in his hand which he regarded as an immediate threat and fired two bursts from his rifle until the man fell. Soldier S passing the body saw no weapon near it.

When the blue van and the digger arrived at the RUC station, there had been a white Citroen car right behind them. After shooting started but before the bomb went off, this car began to reverse towards the soldiers in position 5. Soldiers S, T and U opened automatic fire on the car and when they stopped firing the vehicle was about 20 metres away. The front seat passenger got out of the car despite a warning from Soldier U not to move. He was wearing blue coveralls. Almost immediately, he was hit by gunfire from Soldier U and he fell to the ground. Later realising that he was still alive, Soldiers S and U moved him onto the pavement and put two field dressings on his wounds. The driver of the car was dead at the wheel of the car.

Soldier W approaching the police station noticed ten feet away in the driveway a person lying on his back still moving. He saw that the man’s right hand was clenched and that something metallic was protruding. Believing the man to be a threat to himself and Soldier V, he fired two shots at him. Soldier X checking the body found that the man was holding a cigarette lighter.

Other vehicles near the scene of the attack included a red Sierra 15 metres from position 6, occupied by a woman and her daughter, a blue Escort about 70 metres from the scene which was empty and a white Sierra, with three female occupants. These cars, or their occupants, were directed to positions of safety by soldiers as soon as the opportunity arose.

When the shooting ceased the soldiers and members of the RUC were airlifted back to their barracks.

From 7.35 p.m., officers from the RUC Criminal Investigation Department, the Scenes of Crime Department and the Northern Ireland Forensic Laboratory began arriving to survey the crime scene and identify items of forensic interest. Photographs were taken of the scene and of the bodies. The scene can be described as follows:

There were two significantly bullet damaged vehicles, a blue Toyota Hiace van (with approximately 125 bullet holes in the bodywork) and a white Citroen car (with approximately 34 bullet holes in the front, rear and side of the car). In the vicinity of the junction of Clovenden Road/Ballygasey Road there were bullet damaged Vauxhall Cavalier and Ford estate cars.

The bodies were wearing blue boiler suits except where specified otherwise.

The first body (Patrick Kelly) was found lying at the front of the van with a radio lying on the ground beside the body and a rifle lying on the body. There was debris on the rifle suggesting that this person was lying on the ground before the explosion. The pathologist noted that his right upper canine tooth had recently been torn out.

The second body (Michael Gormley) was lying on the pavement at the north side of the van near the open side door with a rifle nearby. The body was lying on top of the right leg of body 3, strongly suggesting that body 3 was lying on the ground before body 2 fell.

The third body (Seamus Donnelly) was lying on the pavement towards the north side of the Toyota van. There was ammunition and a cigarette lighter near the body. The pathologist observed at least twenty separate missile wounds (i.e. bullet and fragment) and found that discharge abrasion on an entry wound on the front of the neck indicated that when the gun was discharged the muzzle was within several feet of the body, probably while it was lying on the ground.

The fourth body (Patrick McKearney) was lying face down along the outside panel inside the rear of the van with the head towards the rear door. There was ammunition in the pocket of the boiler suit (he was also wearing a flak jacket) and in the jeans pocket. The post mortem examination revealed at least a dozen wounds to the torso and head.

The fifth body (James Lynagh) was lying diagonally across the interior of the van with the feet towards the rear door. There was ammunition in the pocket of the boiler suit and in the anorak and jeans pockets. Material on the body suggested that it was on the floor before the explosion occurred. He had received multiple bullet and fragment injuries.

There were four loaded rifles and one shotgun found in the van. Three of the stocks were folded.

The sixth body (Eugene Kelly), which had massive head damage and multiple injuries elsewhere, was seated in the driver seat of the van. There was a revolver lying between the driver’s seat and his door.

The seventh body (Declan Arthurs) was lying in a lane-way opposite the premises of the Loughgall Football Club. This body was not wearing a boiler suit and there was a cigarette lighter close to the right hand.

The eighth body (Gerald O’Callaghan) was lying on its right side on the pavement at the Loughgall side of the lane-way. Twelve wounds were noted by the pathologist.

The ninth body (Antony Hughes) was seated with the seat belt on in the driver’s seat of the white Citroen car. The body was not wearing a boiler suit. The post mortem examination showed twenty-nine wounds (bullet and shrapnel).

At 10.35 p.m. on 8 May 1987, the police took possession of the firearms used by Soldiers A to X which were delivered the following day to the Northern Ireland Forensic Science Laboratory for examination.

On the morning of 9 May 1987, a scene of crimes officer and forensic experts from the Northern Ireland Forensic Science Laboratory conducted an examination of the scene and took possession of a large number of exhibits. The cars were removed for expert examination.

Spent cartridge cases were recovered from all over the crime scene which stretched from the junction of Cloveneden Road/Ballygasey Road to the Church/Church Hall in the vicinity of the start of Main Street, Loughgall. In total, 678 spent cartridge cases were recovered, 78 of which were from IRA weapons.

On 9 and 10 May 1987, two forensic doctors carried out post mortem examinations of the bodies.

Between 9 and 12 May 1987, police officers conducted lengthy interviews with soldiers A to X, each of whom made a written statement. On 16 March 1988, soldier L was asked by the police to clarify his statement.

On 21 July 1988, the RUC forwarded a report to the Director of Public Prosecutions for Northern Ireland (the DPP) on the outcome of their RUC investigation. On 22 September 1988, he concluded that the evidence did not warrant the prosecution of any person involved in the shootings. The Government stated that this decision was notified to the next-of-kin of the deceased. The applicants stated that only the family of Antony Hughes was informed.

On 9 May 1990, the statements taken during the RUC investigation were forwarded to the Coroner.

On 6 September 1990, the Coroner held a preliminary meeting attended by the lawyers representing the relatives of the deceased. At their request, he adjourned the inquest which he had intended to hold on 24 September 1990, pending the determination of the Devine case, before the Court of Appeal (and subsequently the House of Lords), which concerned the powers of Coroners and the procedure at inquests. Judgments were given by the Court of Appeal on 6 December 1990 and by the House of Lords on 6 February 1992, pursuant to which it was established that rule 17 of the Coroners’ Rules did not prevent coroners admitting written statements in evidence.

The inquests were further adjourned pending the outcome of proceedings relating to the inquests into the deaths of Gervaise McKerr, Eugene Toman and Sean Burns (see application no. 28883/95 brought by Jonathan McKerr). These proceedings involved decisions by the High Court on 2 June 1992 and 21 December 1992 and by the Court of Appeal on 28 May 1993, by which it was held that relatives’ counsel was entitled to see a document used by a witness to refresh his memory. There were further proceedings before the High Court on 20 April 1994, when the writs of subpoena, by which the Coroner had attempted to obtain, inter alia, copies of the Stalker and Sampson Reports, were set aside. The McKerr, Toman and Burns inquests terminated on 8 September 1994.

An inquest into the deaths of the men in the present case was opened on 30 May 1995 in public before a Coroner and a jury of 10 members. It lasted four days. The RUC and Ministry of Defence were represented. On the first day of the inquest, counsel representing the families of six out of the nine deceased (Patrick Kelly, Declan Arthurs, Eugene Kelly, Michael Gormley, Seamus Donnell and Gerard O’Callaghan) sought for the statements of prospective witnesses to be made available to them at the commencement of the proceedings together with the maps and photographs. The Coroner made available the maps and photographs but did not permit counsel (other than those instructed on the Coroner’s behalf) to see witness statements until the witness was giving evidence.

On the same day of the inquest, counsel for the six families asked for the proceedings to be adjourned to allow them to seek judicial review of the decision to refuse access to the witness statements. This adjournment was refused and, following the rejection of a second application, counsel was instructed by the six families to withdraw from the hearing to seek a remedy by way of judicial review. This step was taken on 31 May 1995 following consultation with the families and because it was felt “utterly impossible for the applicants’ interests to be fairly or adequately represented given the rulings of the Coroner”.

The hearing of the inquest proceeded without representation for any of the nine families. The Coroner heard 45 witnesses, including the brother of Antony Hughes who had been shot and injured, civilian and police eye-witnesses, including Constables A and B and the police officers involved in the investigation. None of the soldiers appeared but their statements were lodged. It was concluded on 2 June 1995 that all nine men had died from serious and multiple gun shot wounds.

The family of Declan Arthurs sought judicial review of the Coroner’s decisions not to allow the legal representatives to see witness statements before they gave evidence, not to allow additional time to their advisers to consider expert and controversial evidence, and the refusal of the application for an adjournment. Leave was granted on 1 June 1995. In his judgment of 24 May 1996, Mr Justice McCollum in the High Court refused to quash the Coroner’s decisions or the jury verdict. In doing so, the judge placed considerable emphasis on the character of an inquest as a fact finding exercise and not a method of apportioning guilt.

Seven of the families (the relatives of Antony Hughes, Kevin Antony McKearney, Michael Gormley, Seamus Donnelly, Declan Arthurs, Gerard O’Callaghan and Eugene Kelly) issued civil proceedings against the Ministry of Defence on 2 December 1988, 20 March 1990 and 4 May 1990 respectively.

On 25 April 1991, the Hughes family settled proceedings for 100,000 pounds sterling (GBP) in respect of Antony Hughes, who was a civilian unconnected with the IRA gunmen.

No further steps were taken to pursue the proceedings by the family of Kevin Antony McKearney. Regarding the remaining five families, who are represented by the same lawyer, statements of claim were issued in October 1993, alleging that the shooting of the deceased represented excessive force and was unnecessary and unlawful or, alternatively, that there was negligence, inter alia, in failing to give warnings or an opportunity to submit to lawful arrest and using excessive force.

On 13 January 1994, the five families issued notice of their intention to proceed with their claims.

On 3 March 1994, the Ministry of Defence served their defence, stating inter alia that the force used was necessary to prevent the deceased committing unlawful acts and to protect lives and personal safety. They also served a notice requesting further and better particulars of the statement of claim.

Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia:

“1. A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.”

Self-defence or the defence of others is contained within the concept of the prevention of crime (see e.g. Smith and Hogan on Criminal Law).

The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the Coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia, of post mortem and forensic examinations, who the deceased was and how, when and where he died.

Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8).

Rules 12 and 13 of the Coroners Rules give power to the Coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased.

Where the Coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials.

The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules:

“15. The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely: -

(a) who the deceased was;

(b) how, when and where the deceased came by his death;

(c) the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death.

Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.”

The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (e.g. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. The jury in England and Wales may also append recommendations to their verdict.

However, in Northern Ireland, the Coroner is under a duty (section 6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed.

Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1 paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in Northern Ireland. In March 2001, he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. This included inter alia consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased.

The Coroner enjoys the power to summon witnesses who he thinks it necessary to attend the inquest (section 17 of the Coroners Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule 9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest.

In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate.

Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners:

“... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.”

Domestic courts have made, inter alia, the following comments:

“... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but ‘how...the deceased came by his death’, a far more limited question directed to the means by which the deceased came by his death.

... [previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is ‘To allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson, April 1994, unreported)

“The cases establish that although the word ‘how’ is to be widely interpreted, it means ‘by what means’ rather than in what broad circumstances ... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone ...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others, (1994) 158 JP 357)

“... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial...

It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role - the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R v. South London Coroner ex parte Thompson (1982) 126 SJ 625)

There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence.

Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular No. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised Chief Constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. Such disclosure was recommended to take place 28 days before the inquest.

Paragraph 7 of the Circular stated:

“The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material... Disclosure will therefore be on a voluntary basis..”

Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example:

– where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary);

– where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and

– personal information about third parties not material to the inquest.

Paragraph 11 envisaged that there would be non-disclosure of the investigating officer’s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate.

The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (the 1987 Order). This replaced the Police Complaints Board, which had been set up in 1977, by the Independent Commission for Police Complaints (the ICPC). The ICPC has been replaced from 1 October 2000 with the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998.

The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC.

The ICPC was required under Article 9(1)(a) of the 1987 Order to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). A report by the investigating officer was submitted to the ICPC concerning supervised investigations at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted.

The Chief Constable was required under Article 10 of the 1987 Order to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)) save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)).

If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the report on that investigation (Article 12(2)). It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ICPC specified (Article 13(1) and (3)).

The Director of Public Prosecutions (the DPP), appointed pursuant to the Prosecution of Offences (Northern Ireland) 1972 (the 1972 Order) is an independent officer with at least 10 years’ experience of the practice of law in Northern Ireland who is appointed by the Attorney General and who holds office until retirement, subject only to dismissal for misconduct. His duties under Article 5 of the 1972 Order are inter alia:

“(a) to consider, or cause to be considered, with a view to his initiating or continuing in Northern Ireland any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in Northern Ireland, any facts or information brought to his notice, whether by the Chief Constable acting in pursuance of Article 6(3) of this Order or by the Attorney General or by any other authority or person;

(b) to examine or cause to be examined all documents that are required under Article 6 of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated;

(c) where he thinks proper to initiate, undertake and carry on, on behalf of the Crown, proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him.”

Article 6 of the 1972 Order requires inter alia Coroners and the Chief Constable of the RUC to provide information to the DPP as follows:

“(2) Where the circumstances of any death investigated or being investigated by a coroner appear to him to disclose that a criminal offence may have been committed he shall as soon as practicable furnish to the [DPP] a written report of those circumstances.

(3) It shall be the duty of the Chief Constable, from time to time, to furnish to the [DPP] facts and information with respect to –

(a) indictable offences [such as murder] alleged to have been committed against the law of Northern Ireland; ...

and at the request of the [DPP], to ascertain and furnish to the [DPP] information regarding any matter which may appear to the [DPP] to require investigation on the ground that it may involve an offence against the law of Northern Ireland or information which may appear to the [DPP] to be necessary for the discharge of his functions under this Order.”

According to the Government’s observations submitted on 18 June 1998, it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms. This practice was based upon the consideration that

(1) if reason were given in one or more cases, they would be required to be given in all. Otherwise, erroneous conclusions might be drawn in relation to those cases where reasons were refused, involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice;

(2) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case (e.g. sudden death or flight of a witness or intimidation). To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation;

(3) the publication of the reasons might cause pain or damage to persons other than the suspect (e.g. the assessment of the credibility or mental condition of the victim or other witnesses);

(4) in a substantial category of cases decisions not to prosecute were based on the DPP’s assessment of the public interest. Where the sole reason not to prosecute was the age, mental or physical health of the suspect, publication would not be appropriate and could lead to unjust implications;

(5) there might be considerations of national security which affected the safety of individuals (e.g. where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations, would impair the effectiveness of the counter-terrorist operations of the security forces or endanger the lives of such personnel and their families or informants).

Decisions of the DPP not to prosecute have been subject to applications for judicial review in the High Court.

In R. v. DPP ex parte C (1995) 1 CAR, p. 141, Lord Justice Kennedy held, concerning a decision of the DPP not to prosecute in an alleged case of buggery:

“From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through the Crown Prosecution Service arrived at the decision not to prosecute:

(1) because of some unlawful policy (such as the hypothetical decision in Blackburn not to prosecute where the value of goods stolen was below £100);

(2) because the Director of Public Prosecutions failed to act in accordance with his own settled policy as set out in the code; or

(3) because the decision was perverse. It was a decision at which no reasonable prosecutor could have arrived.”

In the case of R. v. the DPP and Others ex parte Timothy Jones the Divisional Court on 22 March 2000 quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the DPP – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury - required further explanation.

R. v. DPP ex parte Patricia Manning and Elizabeth Manning (decision of the Divisional Court of 17 May 2000) concerned the DPP’s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner, although the inquest jury had reached a verdict of unlawful death - there was evidence that prison officers had used a neck lock which was forbidden and dangerous. The DPP reviewing the case still concluded that the Crown would be unable to establish manslaughter from gross negligence. The Lord Chief Justice noted:

“Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review: see, for example, R. v. Director of Public Prosecutions, ex parte C [1995] 1 Cr. App. R. 136. But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.”

As regards whether the DPP had a duty to give reasons, the Lord Chief Justice said:

“It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined cases which meet Mr Blake’s conditions set out above, we do not understand domestic law or the jurisprudence of the European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern, as recognised by section 8(1)(c), (3)(b) and (6) of the Coroner’s Act 1988, and if the death resulted from violence inflicted by agents of the State that concern must be profound. The holding of an inquest in public by an independent judicial official, the coroner, in which interested parties are able to participate must in our view be regarded as a full and effective inquiry (see McCann v. United Kingdom [1996] 21 EHRR 97, paragraphs 159 to 164). Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who, although not named in the verdict, is clearly identified, who is living and whose whereabouts are known, the ordinary expectation would naturally be that a prosecution would follow. In the absence of compelling grounds for not giving reasons, we would expect the Director to give reasons in such a case: to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given, to vindicate the Director’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet the European Court’s expectation that if a prosecution is not to follow a plausible explanation will be given. We would be very surprised if such a general practice were not welcome to Members of Parliament whose constituents have died in such circumstances. We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves. We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision. But the number of cases which meet Mr Blake’s conditions is very small (we were told that since 1981, including deaths in police custody, there have been seven such cases), and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review. In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require.”

On this basis, the court reviewed whether the reasons given by the DPP in that case were in accordance with the Code for Crown Prosecutors and capable of supporting a decision not to prosecute. It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute. The decision was quashed and the DPP was required to reconsider his decision whether or not to prosecute.

In the Matter of an Application by David Adams for Judicial Review, the High Court in Northern Ireland on 7 June 2000 considered the applicant’s claim that the DPP had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police. It noted that there was no statutory obligation on the DPP under the 1972 Order to give reasons and considered that not duty to give reasons could be implied. The fact that the DPP in England and Wales had in a number of cases furnished detailed reasons, whether from increasing concern for transparency or in the interests of the victim’s families, was a matter for his discretion. It concluded on the basis of authorities that only in exceptional cases such as the Manning case (paragraph 73 above) would the DPP be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice Kennedy (paragraph 71 above) were infringed. Notwithstanding the findings in the civil case, they were not persuaded that the DPP had acted in such an aberrant, inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted.

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (UN Force and Firearms Principles) were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.

Paragraph 9 of the UN Force and Firearms Principles provides, inter alia, that the “intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life”.

Other relevant provisions read as follows:

Paragraph 10

“... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”

Paragraph 22

“... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of death and serious injury or other grave consequences, a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control.”

Paragraph 23

“Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process, including a judicial process. In the event of the death of such persons, this provision shall apply to their dependants accordingly.”

Paragraph 9 of the United Nations Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65, (UN Principles on Extra-Legal Executions) provides, inter alia, that:

“There shall be a thorough, prompt and impartial investigation of all suspected cases of extra legal, arbitrary and summary executions, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances ...”

Paragraphs 10 to 17 of the UN Principles on Extra-Legal Executions contain a series of detailed requirements that should be observed by investigative procedures into such deaths.

Paragraph 10 states, inter alia:

“The investigative authority shall have the power to obtain all the information necessary to the inquiry. Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify ...”

Paragraph 11 specifies:

“In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality, because of the importance of the matter or because of the apparent existence of a pattern of abuse, and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons, Governments shall pursue investigations through an independent commission of inquiry or similar procedure. Members of such a commission shall be chosen for their recognised impartiality, competence and independence as individuals. In particular, they shall be independent of any institution, agency or person that may be the subject of the inquiry. The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these principles.”

Paragraph 16 provides, inter alia:

“Families of the deceased and their legal representatives shall be informed of, and have access to, any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence ...”

Paragraph 17 provides, inter alia:

“A written report shall be made within a reasonable time on the methods and findings of such investigations. The report shall be made public immediately and shall include the scope of the inquiry, procedures, methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ...”

The “Minnesota Protocol” (Model Protocol for a legal investigation of extra-legal, arbitrary and summary executions, contained in the UN Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions) provides, inter alia, in section B on the “Purposes of an inquiry”:

“As set out in paragraph 9 of the Principles, the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim. To fulfil that purpose, those conducting the inquiry shall, at a minimum, seek:

(a) to identify the victim;

(b) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible;

(c) to identify possible witnesses and obtain statements from them concerning the death;

(d) to determine the cause, manner, location and time of death, as well as any pattern or practice that may have brought about the death;

(e) to distinguish between natural death, accidental death, suicide and homicide;

(f) to identify and apprehend the person(s) involved in the death;

(g) to bring the suspected perpetrator(s) before a competent court established by law.”

In section D, it is stated that “In cases where government involvement is suspected, an objective and impartial investigation may not be possible unless a special commission of inquiry is established ...”

In the report on its visit to the United Kingdom and the Isle of Man from 8 to 17 September 1999, published on 13 January 2000, the European Committee for the Prevention of Torture (the CPT) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill-treating persons. It commented, inter alia, on the statistically few criminal prosecutions and disciplinary proceedings which were brought, and identified certain aspects of the procedures which cast doubt on their effectiveness:

The chief officers appointed officers from the same force to conduct the investigations, save in exceptional cases where they appointed an officer from another force, and the majority of investigations were unsupervised by the Police Complaints Authority.

It stated at paragraph 55:

“As already indicated, the CPT itself entertains reservations about whether the PCA [the Police Complaints Authority], even equipped with the enhanced powers which have been proposed, will be capable of persuading public opinion that complaints against the police are vigorously investigated. In the view of the CPT, the creation of a fully-fledged independent investigating agency would be a most welcome development. Such a body should certainly, like the PCA, have the power to direct that disciplinary proceedings be instigated against police officers. Further, in the interests of bolstering public confidence, it might also be thought appropriate that such a body be invested with the power to remit a case directly to the CPS for consideration of whether or not criminal proceedings should be brought.

In any event, the CPT recommends that the role of the ‘chief officer’ within the existing system be reviewed. To take the example of one Metropolitan Police officer to whom certain of the chief officer’s functions have been delegated (the Director of the CIB [Criminal Investigations Bureau]), he is currently expected to: seek dispensations from the PCA; appoint investigating police officers and assume managerial responsibility for their work; determine whether an investigating officer’s report indicates that a criminal offence may have been committed; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer’s report, and liase with the PCA on this question; determine which disciplinary charges should be brought against an officer who is to face charges; in civil cases, negotiate settlement strategies and authorise payments into court. It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way.

...Reference should also be made to the high degree of public interest in CPS [Crown Prosecution Service] decisions regarding the prosecution of police officers (especially in cases involving allegations of serious misconduct). Confidence about the manner in which such decisions are reached would certainly be strengthened were the CPS to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought. The CPT recommends that such a requirement be introduced.”