Execution of Judgments of the European Court of Human Rights
Action Plan
Collette and Michael Hemsworth v The United Kingdom (Application no. 58559/09; judgment final on 16 October 2013) and McCaughey and Others v The United Kingdom (Application no. 43098/09; judgment final on 16 October 2013
Information submitted by the United Kingdom Government on [date]
Case Summary
Case description
In the Hemsworth and McCaughey and Others cases the Court found a number of delays into holding inquests which were excessive and incompatible with the State’s obligation under Article 2 to ensure the effectiveness of investigations into suspicious deaths. Causes of delay included periods of inactivity; the quality and timeliness of disclosure of material; lack of contact with families of victims; DPP decision-making; and delays stemming from legal actions necessary to clarify coronial law and practice.
The Court held that there had been a violation of the procedural requirements of Article 2 of the Convention by reason of excessive investigative delay. The Court commented that the Government must take measures to ensure that, in these and similar cases where inquests are pending, the procedural requirements of Article 2 are complied with expeditiously.
Individual Measures
Just satisfaction
The just satisfaction awards have been paid; evidence has previously been supplied.
Individual measures
As noted by the Court in its judgment, inquests have taken place in both cases.
In the Hemsworth case the inquest, sitting with a jury, took place on 16 May 2011. It made findings as to the cause of death and those likely to be responsible. No challenge has been received as to the inquest’s findings. The Coroner referred the matter to the Public Prosecution Service (PPS). The matter was also referred to the Office of the Police Ombudsman for Northern Ireland OPONI), which has begun a fresh investigation (http://www.policeombudsman.org/modules/press/press.cfm/Press_ID/374/action/detail/year/2014).
In the McCaughey and Others case the inquest, also sitting with a jury, was held between 12 March and 2 May 2012. It gave a narrative verdict which found the soldiers involved to have acted reasonably, with one shot in relation to which there was insufficient evidence to comment. A subsequent Judicial Review, initiated by the next-of-kin, challenged many aspects of the inquest.
Leave to appeal was refused on all but one ground, which is currently before the Court of Appeal in Northern Ireland. The next-of-kin appealed the refusal of leave to appeal on the other grounds. This appeal was heard by the Court of Appeal on 12 and 13 February 2014 and the judgment is awaited.
The UK Government will update the Secretariat on any further developments in these cases.
General Measures
In 2003 the UK Government put in place an Action Plan to respond to issues identified by the Court regarding the proper examination of the circumstances of killings by State agents. The Department of Justice is committed to further developing those measures in this Action Plan, putting in place practical and proportionate steps to ensure investigation, coordination and disclosure issues are resolved; and delivering timely access to justice for the families affected.
In developing these measures, the Department acknowledges that the current arrangements for dealing with the criminal justice aspects of the past are complex; costly; and can fail to achieve satisfaction for victims and survivors in individual cases, thus damaging the wider objective of societal healing. The cost and impact of dealing with the past on criminal justice organisation was set out in a report from Criminal Justice Inspection Northern Ireland (CJINI) in November 2013 (http://www.cjini.org/CJNI/files/8b/8b89d447-fb32-41d7-ae26-57b18509c8a2.pdf).
Contending with the past was also central to the All-Party Group, set up by the First and deputy First Ministers in July 2013, under the chairmanship of Dr Richard Haass. The Haass proposals, published on 31 December 2013, included the establishment of a new Historical Investigations Unit (HIU) to take forward the remaining caseload of the Historical Enquiries Team (HET) and the conflict-related cases being dealt with by Office of the Police Ombudsman of Northern Ireland (OPONI).
Haass proposed that an HIU be established with: its own independent statutory powers of investigation; the ability to undertake Article 2 compliant investigations; and the capacity to generate a more coherent, victim-focused response to the past than the current arrangements (http://www.northernireland.gov.uk/haass.pdf). The Northern Ireland Parties have yet to reach agreement on these proposals, and the General Measures below may be affected by the outcome of those talks.
Measures to Address Delay
Pending a decision on the Haass proposals, the following general measures are being implemented:
Improving the Speed of Disclosure
- The PSNI is fully committed to fulfilling its legal obligations under the ECHR, including effective and timely disclosure to the families of victims, and to the Coroner. In light of concerns about delay, the PSNI has increased the resourcing of its Legacy Support Unit, which manages the PSNI’s legal response to the disclosure process. An additional lawyer has already been appointed to the team.
Cross-Agency Working Group
- An operational level Cross-Agency Working Group will be established by May 2014 focused on reducing delay. Its objectives will include developing disclosure protocols between agencies. Draft Terms of Reference are attached, at Annex 1. A preliminary meeting of key stakeholders was held on 10 April to discuss the Working Group’s Terms of Reference and modus operandi.
Addressing Delay in Inquest Proceedings
- The Department of Justice has introduced a Legal Aid and Coroners’ Courts Bill in the Northern Ireland Assembly, which designates the Lord Chief Justice of Northern Ireland as President of the Coroners’ Courts and requires him to assign a senior Judge to be the Presiding Judge for the Coroners’ Courts. These new powers, which should be on the statute book later this year, will allow the Lord Chief Justice to introduce improved judicial case management in the Coroners’ Courts. Under these powers the Lord Chief Justice will be able to assign Article 2 inquests to specific Coroners.
- The Northern Ireland Courts and Tribunals Service, which provides administrative support for the Coroners Service, is developing proposals to establish a Legacy Inquest Unit (LIU). The LIU will be organised along the lines of the inquest into the London bombings on 7/7/2005, and comprise:Senior Coroners assigned to Article 2 cases; specialist investigative support (e.g. Coroner’s Investigators, medical examiners, etc.), to support the Coroner’s investigation;dedicated legal support – including in-house legal and para-legal staff;and dedicated administrative support, including a secure IT platform for managing sensitive material. Subject to securing the necessary resources, the Department expects to start putting these steps in place later this year.
- The Department of Justice recognises that the coronial law in Northern Ireland would benefit from review and updating. Whilst of the view that any amendment is unlikely to impact significantly on the progression of legacy cases, the Department accepts that there is merit in updating the legislation. To deliver this, it will be commissioning a review of the legislation.
Improving Office of the Police Ombudsman Northern Ireland (OPONI) Investigations
- The Police Ombudsman has made a number of changes to the operation of OPONI investigations to improve their effectiveness and to reduce delay. These include the appointment of a new senior team; improved governance arrangements; the appointment of additional experienced staff; the introduction of an Article 2 policy, specialist training and development of best practice; and increased funding. Following these changes, CJINI concluded that OPONI was ready to resume historic investigations in January 2013 (http://www.cjini.org/NewsAndEvents/2009/2013/January---March/Police-Ombudsman.aspx). A further review will be undertaken once OPONI has completed three investigations.
- The Department of Justice has also consulted extensively on further reforms to the powers and future operation of OPONI. It intends to bring legislation to give effect to the reforms to the Northern Ireland Assembly in Autumn 2014 (see McKerr Action Plan for more detail).
- In July 2012 the Northern Ireland Minister of Justice commissioned Her Majesty’s Inspectorate of Constabulary (HMIC) to review HET’s effectiveness, including its Article 2 compliance. HMIC made twenty recommendations, including: a new staff deployment/vetting policy, to safeguard the independence of investigations; removing inconsistency in the treatment of state and non-state involvement cases; the timeframe for HET reviews; and mechanisms to improve HETs transparency and accountability (http://www.hmic.gov.uk/media/inspection-of-the-police-service-of-northern-ireland-historical-enquiries-team-20130703.pdf). The HMIC recommendations have been accepted by the Chief Constable and implementation has already started.
- The Northern Ireland Policing Board (NIPB), which has statutory responsibility for holding the Chief Constable to account for the exercise of his functions, has established a working group to oversee the implementation of the HMIC recommendations. Whilst implementation is a matter for the Chief Constable and the NIPB, the Department of Justice has responsibility, as sponsor Department for the NIPB, to ensure that the appropriate governance structures are in place. The Minister of Justice meets the chair of the Policing Board monthly for an update on progress, to provide the necessary assurance.
Measures for Further Consideration
- The Department of Justice is giving further consideration to other measures that could assist in reducing delay, for example the CJINI recommendations on the past, including proposals for a Legacy Executive Group (http://www.cjini.org/CJNI/files/8b/8b89d447-fb32-41d7-ae26-57b18509c8a2.pdf).
Publication
- The judgments have been published in numerous legal publications, including:
Dissemination:
- The Government considers it unnecessary to disseminate the judgments further because they have been widely reported in the national media and press for example:
Annex 1
Cross Agency Working Group – Draft Terms of Reference
Background
In the Hemsworth and McCaughey and Others cases the European Court of Human Rights found the delays in holding those inquests excessive and incompatible with the State’s obligation under ECHR Article 2 to ensure the effectiveness of investigations into suspicious deaths. The UK Government has responded to the findings by developing an action plan to ensure that the procedural requirements of Article 2 are complied with. Actions include the establishment of a Cross Agency Working Group.
Role and Remit of Working Group
The Working Group will seek to:
The Working Group’s remit will not extend to the management or investigation of individual cases.
Accountability
The Working Group will report to the Criminal Justice Delivery Group, chaired by the Minister for Justice and including the Lord Chief Justice, the Director of Public Prosecutions, the Attorney General and the Chief Constable of the PSNI.
Membership
Representatives from: NICTS (Chair), Historical Enquiries Team, PSNI Legacy Support Unit, Office of the Police Ombudsman Northern Ireland, NICTS Legacy Inquest Unit, Coroners Service, Crown Solicitors Office, DOJ, Lord Chief Justice’s Office and Public Prosecution Service.
Meeting Schedule
Monthly until disclosure protocols are in place, scheduling has been agreed and the resourcing levels required to facilitate effective disposal of legacy inquests have been established. Thereafter quarterly.