PFC submission to Committee of Ministers re McKerr & ors v UK
21 Sept 2017 | 21 September 2017
Below is the PFC's recent submission to the Committee of Ministers concerning the McKerr group of cases. We have also attached the statement by the Irish Government to the CoM and their response issued today.
Copies of other useful documents can be found on the Council of Europe website and the decisions adopted should be uploaded there over the next few days: http://www.coe.int/en/web/cm/meetings-2017/-/asset_publisher/OZPU3QR7b5uC/content/1294dh-meeting-of-the-ministers-deputies-19-21-september-2017-
SUBMISSION TO THE COMMITTEE OF MINISTERS BY THE PAT FINUCANE CENTRE
The Pat Finucane Centre (PFC) in conjunction with Justice for the Forgotten (JFF, Dublin) wish to make the following Rule 9 submission to the Committee of Ministers on its supervision of the following cases relating to security force actions in Northern Ireland:
Jordan v the United Kingdom, judgment final on 4 August 2001
Kelly and Ors v the United Kingdom, judgment final on 4 August 2001
McKerr v the United Kingdom, judgment final on 4 August 2001
Shanaghan v the United Kingdom, judgment final on 4 August 2001
McShane v the United Kingdom, judgment final on 28 August 2002
Finucane v the United Kingdom, judgment final on 1 October 2003
Hemsworth v UK, judgment final on 16 October 2013
McCaughey & Others v UK, judgment final on 16 October 2013
The PFC is a non-party political, anti-sectarian human rights group advocating a non-violent resolution of the conflict on the island of Ireland. We believe that all participants to the conflict have violated human rights.
The PFC asserts that the failure by the British state to uphold Article 7 of the Universal Declaration of Human Rights, “all are equal before the law and are entitled without any discrimination to equal protection of the law”, is the single most important explanation for the initiation and perpetuation of violent conflict.
We provide an advocacy, advice and support service to families, bereaved/injured as a result of the conflict, who wish to engage with statutory agencies including the (now-defunct) Historical Enquiries Team (HET), the Office for the Police Ombudsman of Northern Ireland (OPONI) in Northern Ireland, the Legacy investigations Branch of the PSNI and the Coroners Service and An Garda Síochána in the Republic (through JFF).
The aim of our work is to assist families establish the facts surrounding the death/s of their loved one/s or injuries sustained. We are also engaged, on both sides of the border, in working with individual families in a project known as the Recovery of Living Memory Archive (RoLMA).
We currently provide this service to approximately 200 families across Ireland through four offices in Derry, Armagh, Belfast and Dublin (in partnership with Justice for the Forgotten). Many of these cases engage Article 2 ECHR issues.
We respectfully submit this Rule 9 submission for consideration at the 1294th meeting of the Ministers’ Deputies in September 2017.
The PFC has made previous Rule 9 communications to the Committee of Ministers (CM) on the same group of cases in relation to what are now called the “package of measures” agreed by the UK. Our most recent submission was made in October 2016. We make this submission to update the CM on developments, or more appropriately, the UK government’s resiling from the “package of measures.”
Stormont House Agreement (SHA)
It is nearly three years (December 2014) since the Stormont House Agreement (SHA) was reached and to date none of the proposals to deal with the legacy of the past in relation to the conflict have been implemented. There is currently no NI Executive in place and therefore little prospect of the SHA being implemented as the British Government have stipulated that there needs to be consensus between the local parties before the process can move to the next phase, a public consultation.
Following numerous rounds of talks between the local parties, no agreement could be reached to ensure the re-establishment of the NI Executive and talks have been parked for the summer to resume in September 2017. One of the main sticking points in relation to the continuing negotiations is the ‘onward’ disclosure of information to families. The SHA made no reference to national security issues but now the British Government has introduced national security issues to the negotiations. It should be remembered that the British government has never defined national security and there is a strong feeling that it could be used not only to conceal genuine security issues but also issues which may only be embarrassing to the State.
Currently there is in place a proposed framework to deal with the backlog of legacy inquests, this is a proposal put forward by the Lord Chief Justice (LCJ) in January 2016 which would deal with legacy inquests within a five year period. Unfortunately yet again the British Government has stipulated that there needs to be agreement on all legacy issues before the funding that is required by the coronial system to put in place the LCJ’s proposals will be released.
It is our understanding that it is the British state that has obligations under ECHR and not the local parties and we therefore cannot understand how the British state can be allowed to derogate its responsibilities to parties who are not signed up to the ECHR.
Independence of the Legacy Investigations Branch (LIB)
In recent months there have been a number of important judgments in the local courts which calls into question the independence of the LIB and therefore its appropriateness in investigating legacy cases. This is a view that the PFC has long held.
The first was handed down in March 2017 and relates to the death of Jean Smyth, killed on 8th June 1972. In 2015 Jean’s sister Margaret McQuillan initiated JR proceedings in relation to previous flawed investigations conducted by the RUC and the HET and challenging the independence of the PSNI to conduct an independent investigation. In his judgement, Maguire J stated that:
“the proposed investigation by the LIB of Ms. Smyth’s death conflicts with the requirements of Article 2 ECHR as the LIB lacks the requisite independence required to perform an Article 2 compliant investigation in respect of this death.”
The second and more recent judgement was handed down by Tracey J in July 2017. A Judicial Review was taken by the brother of Patrick Barnard a thirteen-year old boy who was killed in a bomb explosion outside the Hillcrest bar on the 17th March 1976. The PFC has worked closely with the Barnard family and the families of the other three people killed in this attack for many years. This attack was identified as one in a series which has commonly become known as the ‘Glenanne Series’. The PFC and the ‘Glenanne’ families critically engaged with the HET in an attempt to help families and victims to establish as much information about the death of their loved ones. During this process representatives of the HET gave assurances to the families and PFC staff that an ‘over-arching thematic report’ would be provided to each family along with the individual family reports that they would receive. The purpose of the additional report was to make links between the individual cases and attempt to explain these links to the families and to establish if evidence of collusion could be established.
According to the summary of the judgement which was released to the public:
“The HET was established in 2005 as part of the Package of Measures. It was initially part of the PSNI’s Serious Crimes Review Team but this quickly evolved into an independent unit of the PSNI which reported directly to the Chief Constable. The HET adopted three main objectives:
o To assist in ‘bringing a measure of resolution’ to those families affected by deaths attributable to the security situation in Northern Ireland between the years 1968 to 1998;
o To re-examine all deaths in this respect and to ensure that all investigative and evidential opportunities are subject to a thorough, professional examination in a manner that satisfies the PSNI’s obligations of an ‘effective investigation’ in conformity with section 2 of the PSNI Code of Ethics;
o To do so in a way that commands the confidence of the wider community.
Originally, the HET was to have two teams, one staffed by officers seconded from police forces outside NI which would deal exclusively with cases in which independence from the PSNI was seen as a pre-requisite. The second team was staffed by a mix of police officers and civilian staff recruited from both the PSNI and externally. In 2006, the Director of the HET indicated that a third team (“the White Team”) was being established. He said it would be based in England to reinforce independence and would be “largely analytically driven and examine the collusion issues”. He said the HET was “not set up to deal with Glenanne but to meet the families. Glenanne has come into the process and we are devising a structure by which we hope to be able to deal with it”. In materials provided to the CM it was also stated that the type of cases being handled by the White Team would be referred to the Police Ombudsman for Northern Ireland (“PONI”) who would conduct a parallel investigation into allegations of police misconduct.”
“So in the original conception of the work of the HET it was always intended to develop a database to facilitate the cross-referencing of material and the quest for evidential links and patterns which might not appear from review of individual cases alone. The development of this element of the HET process appears to be the UK’s proposal for addressing the systemic nature of some of the failings identified in the McKerr series.”
Tracey J then goes on to outline what changed after the CM decided to close its examination into the investigation of historical cases in March 2009 and states that:
“The changes in the structure and process introduced after 2009 makes it clear that the structure and process now in place lacks most, if not all, of the essential safeguards which the UK Government agreed with the CM to put in place for future investigations of cases of this nature in order to comply with the decisions of the ECtHR in the McKerr series of cases. These changes came about apparently as a result of the decisions of the Chief Constable and Assistant Chief Constable.”
This leads Tracey J to decide that:
“…the ability of the Legacy Investigation Branch to continue the work of the HET is undermined by the fact that it has less resources, significantly reduced scope and is not independent in the manner required by Article 2 and the Package of Measures.
He went on to say:
“… the LIB lacks structural and operational independence as well as functional reach and meaningful output. He concluded that the changes introduced by the Chief Constable are “fundamentally inconsistent with Article 2 and the package of measures” and that the current LIB cannot comply with even the required minimum elements.”
During the hearings Tracey J was told that in at least three of the 89 Glenanne series of cases there was direct evidence of collusion and the remaining cases were linked by suspects, ballistics or intelligence. Mr Justice Treacy said there was therefore credible suspicion of collusion in respect of the remaining cases and that a revived Article 2 duty arises. He noted that the HET had repeatedly acknowledged that its overarching thematic report was a key process by which it may be possible to unearth opportunities that were not capable of discovery by looking at cases in isolation:
“Given that an Article 2 duty arose in respect of Patrick Barnard (and all other victims in the Glenanne series) there was a requirement on the State to carry out an effective investigation into his death. The duty of the HET in that context included seeking out credible evidential opportunities which would form the basis of such an effective investigation. In relation to Patrick Barnard (and the others) the HET recognised that its regular, non-White Team practice was insufficient to find evidential opportunities in collusion cases and put in place the analysis driven White Team to parse the evidence arising from a joined-up consideration of linked cases to meet its remit. The Chief Constable in halting that process which had been openly promised and which was acknowledged to be essential to the HET’s purpose has turned his back on a potentially rich source of evidential opportunities. This decision frustrates any possibility of an effective investigation which would fulfil the Article 2 duty which now arises and has foreclosed any possibility that the Article 2 duty will be fulfilled.”
Tracey J in his final comments states:
“The unfairness here is extreme – where the applicant had believed that the murder of his brother would finally be considered in context for the purposes of discovering if there was any evidence of collusion in the murder, that process is now completed and will not be taken up by any other body. The frustration of the HET commitment communicated by the ACC completely undermined the “… primary aim [of the HET] to address as far as possible, all the unresolved concerns that families have”. It has completely undermined the confidence of the families whose concerns are not only still unresolved but compounded by the effects of the decisions taken by the Chief Constable. It is a matter of very grave concern that almost two decades after the McKerr series of judgments decisions were taken apparently by the Chief Constable to dismantle and abandon the principles adopted and put forward to the CM to achieve art 2 compliance. There is a real risk that this will fuel in the minds of the families the fear that the state has resiled from its public commitments because it is not genuinely committed to addressing the unresolved concerns that the families have of state involvement. In the context of the Glenanne series, as I said earlier, the principle unresolved concern of the families is to have identified and addressed the issues and questions regarding the nature, scope and extent of any collusion on the part of state actors in this series of atrocities including whether they could be regarded, as the applicant argued, as part of a ‘state practice’. I consider that whether the legitimate expectation is now enforceable or not its frustration is inconsistent with Article 2, the principles underpinning the ECtHR judgements in the McKerr series and the Package of Measures.”
OPONI – Lack of Funding
Unfortunately the OPONI is still underfunded and this is having a detrimental effect on ongoing and future investigations. In recent months a large number of families have received a letter from the Ombudsman’s office outlining the reason for the delay, unfortunately they are also unable to give families a date as to when investigations may commence in most cases.
The letter states:
“It is with regret that I am still unable to provide you with a definitive timescale within which I would anticipate commencing an investigation of your complaint. This is entirely due to competing priorities within the Police Ombudsman’s historic/legacy caseload of some 400 matters and the diminishing resources available to conduct these investigations.
You may recall previous correspondence in which I described the adverse impact of inadequate resourcing of the Police Ombudsman’s strategy for ‘Dealing with the Past’ on timeliness within which this office can investigate such complaints. On 24 March 2017 the High Court of Northern Ireland delivered an important judgement concerning the central cause for these delays. Although the proceedings relate to a specific complaint received by this Office in 2009, in connection with a murder which occurred in 1982, the judgement is also relevant to our wider historic caseload, which both the Police Ombudsman and the court acknowledge should be undertaken ‘without undue delay’.
The court had ‘no hesitation in attributing the delay in the PO (Police Ombudsman) dealing with this complaint to the chronic underfunding of the PO on the part of the DOJ (Department of Justice)’. The court also had ‘no difficulty in concluding that, on the balance of probability, the source of the problem besetting the PO’s office lies with the failure of government, most directly the DOJ to provide adequate resources to the PO’.
The court recognised that ‘the present case is one of systemic and persistent underfunding which is disabling the PO, not in one but in a range of cases, and not in particularly demanding standard viz that of carrying out its investigation into a public complaint against the police within a reasonable time.’
The office has made repeated efforts to secure additional funding to ensure our programme of historic investigations is completed within a reasonable time. Unfortunately none has been forthcoming. Our most recent business case, forwarded to the Department of Justice in 2016, was not approved on the basis that the release of such funding was linked to planning for the establishment of the HIU (Historical Investigations Unit). In addressing this argument the court decided to ‘also set aside and dismiss from the case the issue of the systemic reform process, exemplified by the Stormont House agreement, which has to date clearly failed to provide any sure way forward or otherwise offered a cure for the problem.’
The Department of Justice has since appealed this judgement but also indicated that general funding for the Police Ombudsman, including his historic investigations, is likely to be reduced by a further 3% during 2017/18. An additional reduction in our budget for historic investigations is foreseeable in April 2018.
I will write to you again in October of this year by which time I hope to be in a position to provide you with a more informative position concerning the investigation of your complaint.”
As can be seen from the information provided to a large number of families with outstanding complaints to the Police Ombudsman’s office a lack of funding and therefore resources is the main reason for the delay, this is the same position that those awaiting inquests find themselves in, starved of funding by the British government.
Collapse of the Package of Measurers
It is our contention that given the information outlined above, i.e. the lack of resources provided to the Coronial system and to the Police Ombudsman’s office, the lack of independence of the PSNI’s LIB and the failure to implement the Stormont House Agreement, the only conclusion that can be drawn is that the Package of Measures agreed between the British Government and the CM has effectively collapsed. In the words of Tracey J in the Barnard JR ‘(i)t is a matter of very grave concern that almost two decades after the McKerr series of judgments decisions were taken apparently by the Chief Constable to dismantle and abandon the principles adopted and put forward to the CM to achieve art 2 compliance. There is a real risk that this will fuel in the minds of the families the fear that the state has resiled from its public commitments because it is not genuinely committed to addressing the unresolved concerns that the families have of state involvement.’
Nils Muiznieks, the Council of Europe's commissioner for human rights said during a visit to Belfast in November 2014 that "(t)he UK government cannot wash its hands of the investigations, including funding of the investigations. These are the most serious human rights violations. Until now there has been virtual impunity for the state actors involved and I think the government has a responsibility to uphold its obligations under the European Convention to fund investigations and to get the results. The issue of impunity is a very, very serious one and the UK government has a responsibility to uphold the rule of law. This is not just an issue of dealing with the past, it has to do with upholding the law in general."
It is evident that nothing has changed since Nils Muiznieks’ visit in 2014 and with this in mind we respectfully request that the CM examination of the McKerr set of cases is reopened until such time as the British Government is deemed to be complying with its obligations under Article 2.
 Cadwallader, A. 2013. Lethal Allies, British Collusion in Ireland. Mercier Press, Cork.
 Application by Patricia Bell for judicial review of the decision of the Police Ombudsman to delay investigation of the applicant’s complaint Ref: 2017 NIQB 38