PFC's submission to the Committee of Ministers
Submitted July 2019 | 17 September 2019
PFC recently made a submission to the Committee of Ministers regarding the ongoing failures of the British government to meet their Article 2 procedural duties to investigate under the McKerr group of cases.
The Pat Finucane Centre (PFC, Derry/Armagh/ Belfast, Northern Ireland) 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 assert 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 Coroners Service (CSNI) the Office for the Police Ombudsman of Northern Ireland (OPONI), the police (PSNI) in Northern Ireland and An Garda Síochána in the Republic of Ireland (through JFF).
The aim of our work is to assist families in establishing the facts surrounding the death/s of their loved one/s or physical/psychological 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, Belfast, Armagh 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 meeting of the Ministers’ Deputies in September 2019.
The PFC have 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 February 2019. We make this submission to update the CM on developments, or more appropriately, the lack of them, regarding the UK government’s implementation of the “package of measures.”
PFC provided a substantive submission to the Northern Ireland Office (NIO) as part of -their consultation process (previously shared with CM) and reflecting the views of the 200+ families we support. PFC believes that the establishment of an independent policing body Historical Inquiries Unit (HIU), an Oral History Archive (OHA) and the Independent Commission on Information Retrieval (ICIR) offer a potential to meet the needs of most victims and survivors affected by the conflict. We remain concerned, however, that victims and survivors outside of the north of Ireland will not receive parity of opportunity to satisfy their truth and justice needs. PFC has made representations to the Irish government in respect of the needs of victims and survivors we support in the Republic of Ireland.
PFC welcomes the publication of the Northern Ireland’s Office (NIO) ‘Addressing the Legacy of Northern Ireland’s Past: Analysis of the consultation responses’ on 5th July 2019. We are, however, disappointed that the analysis document does not include any outline or timescales indicating how the British government proposes to move forward and establish the SHA mechanisms without delay.
We agree with the - Victims’ Commissioner, Judith Thompson, who stated recently that:
“Whilst no indication of timeframes has been outlined for the implementation of these institutions, it goes without saying there has been enough delay. It would be grossly unfair to continue to raise the expectations of victims and survivors and then not deliver. I would therefore call upon the Secretary of State to give a clear action plan and time frame for delivering on the needs of people who want truth, justice and acknowledgement.”
In discussions with the NIO it was suggested that two working groups would be established, one in the north of Ireland and one based in Westminster, to try to progress the implementation of the Stormont House legacy mechanisms. This seems to have been abandoned. PFC - is concerned that without a clear, time-lined strategy in place to move forward with acceptable draft legislation, the mechanisms may never be established. PFC remains sceptical that the British government has any intention to deal with the past in an honest, human rights compliant, way.
In the interim period, before the HIU is established (if it is at all), the Police Service of Northern Ireland (PSNI) Legacy Investigations Branch (LIB), the Office of the Police Ombudsman for Northern Ireland (OPONI) and legacy inquests are the current mechanisms utilised to address the British government’s procedural obligations arising from Article. 2. PFC submits that these, even taken together, fail to fulfil this obligation.
Cases engaging Article 3
PFC notes that, under the current SHA proposals, there are no plans to extend the investigative remit of the HIU to include non-fatal cases where serious abuses have taken place (those that engage Article 3 of ECHR.) In previous submissions, PFC has brought it to your attention that we uncovered contemporaneous evidence of UK state actors using torture methods, including the use of ‘waterboarding.’ PFC submits that where there are allegations and evidence of gross violations by state actors of this nature, they must be independently and thoroughly investigated.
PFC recently made a written submission to the United Nations Committee Against Torture (UNCAT). We were then invited to provide oral evidence in Geneva along with our colleagues in Relatives for Justice (RFJ) and the Committee on the Administration of Justice (CAJ). The Committee - was specifically interested in issues that the PFC raised in relation to ‘waterboarding’ and electric shock treatments as a form of torture. The PFC also raised the issue of the outstanding investigation into the murder of Pat Finucane, which, despite a recent Supreme Court ruling, the state had not complied with this to date. The Committee in their ‘Concluding Observations’ on 16th May 2019 stated their concern in relation to both these issues and called on the UK Government to ensure independent and effective investigations in these regards.
The Committee specifically asked that the UK Government provide, by 17th May 2020, information on the follow-up to the Committee’s recommendations on accountability for the conflict-related violations in Northern Ireland. It also called for the UK Government, in the absence of a functioning devolved government in Northern Ireland since January 2017, to take urgent measures to advance and implement the Stormont House Agreement, and the mechanism it contemplates for investigating conflict-related violations, - the Historical Investigations Unit (HIU).
Office of the Police Ombudsman
The PFC has, in earlier submissions, drawn the Committee’s attention to the inadequate funding provided to the Office of the Police Ombudsman of Northern Ireland (OPONI) which currently stands at less than 2% of the NI criminal justice budget.
The History Directorate has an outstanding caseload of over 400 conflict-related cases. PFC continues to engage with the OPONI and support many families whose cases are currently subject to investigations or are awaiting investigations to begin. Many of these concern complex investigations where collusion between loyalist paramilitaries and the RUC (including the use of agents) is alleged. In many cases this involves multiple, linked murders and other serious crimes. Many families are facing lengthy delays of several years for investigations to even begin. This is unacceptable, particularly given the age profile of the families awaiting investigations and vital information/ evidence being lost through witnesses passing away. We believe the chronic under-resourcing of this important office is a deliberate political policy by those determined to obstruct investigations into the relationship of some within the RUC and loyalist paramilitaries during the conflict. By starving them of the proper resources necessary to fulfil their statutory duties, the Office’s ability to investigate allegations of police wrongdoing within a reasonable time is eroded and confidence is diminished.
Police Service of Northern Ireland - Legacy Investigations Branch
In previous submissions PFC has asserted our view that the Legacy Investigations branch (LIB) of the PSNI lacks the requisite independence to carry out Article 2 compliant investigations. We brought the Committee’s attention to the judgement of the High Court by the family of Jean Smyth-Campbell who brought a successful legal challenge to this affect. This has recently been confirmed by the Court of Appeal, where Stephens LJ held:
“…at this time the Chief Constable has not demonstrated practical independence on the part of LIB so that it has the capacity to carry out an investigation into the death of the deceased.”
The Court of Appeal also granted two declarations, namely that
(a) the Chief Constable is obliged to conduct the further investigations into the death of Mrs Jean Smyth in a way which satisfies the State’s procedural obligation under Article 2 ECHR and;
(b) the Chief Constable is bound to promptly take steps to secure the practical independence of the investigators so that they have the capacity to carry out an Article 2 compliant effective investigation into the death of Mrs Jean Smyth.”
It was announced recently that this case will now be investigated by an independent team who are currently conducting the investigation into a range of activities surrounding an individual codenamed Stakeknife, under former Bedfordshire Chief Constable Jon Boutcher. This will be a separate, stand-alone investigation.
This development sets an important precedent that we believe other bereaved families may pursue. In the absence of an independent investigative body (such as the Stormont House HIU), families with no faith in the independence of the PSNI to conduct an Article 2 compliant investigation will likely follow the legal path taken by Jean Campbell-Smyth’s family and demand an independent investigation through the courts.
PFC welcomes the recent decision of the Court of Appeal in the ‘Glenanne’ case (Re Edward Barnard) that upheld a decision by the High Court that the brother of Patrick Barnard had a procedural legitimate expectation that an overarching report would be carried out by an independent police team into over 100 linked murders carried out by the ‘Glenanne gang’. This group consisted of loyalist paramilitaries and serving and former members of the security forces. The Court of Appeal declined to direct the Chief Constable how the independent officers should proceed but noted that if he – delays unduly in appointing the officers, he would be at risk of further proceedings challenging such a failure. We believe the new Chief Constable, Simon Byrne, can send out a positive message to families as to how he intends to deal with legacy cases and look forward to seeing his substantive response.
In our previous submissions to the CM we referred to the plan by the Lord Chief Justice for Northern Ireland (LCJ), Declan Morgan, to reform the legacy coronial system. PFC notes that the LCJ’s proposals followed an “extensive process of engagement with the families, the international community and others to develop a proposed way forward to tackle the outstanding legacy inquests”. 
It was welcome news that the funding to implement the reforms was finally released by the British government earlier this year. The announcement followed a legal judgement brought by Mrs Brigid Hughes, whose husband Anthony (an innocent bystander) was shot dead along with eight IRA members by the SAS at Loughgall in 1987. In 2018 the High Court held that the decision of Former First Minister (FFM) Arlene Foster to withhold the funding was flawed and unlawful, and that the obligation on the state to investigate deaths during the conflict remained whether or not devolved government was restored. The presiding judge, Sir Girvan, also held that the FFM and the Secretary of State had been “infected by the legally erroneous view that dealing with the question of the provision of additional funds to deal with the systemic problems in respect of legacy inquests should await the outcome of an overall package in respect of all legacy issues.”
Despite the Secretary of State continually arguing that the matter rested with the devolved government (again, an argument rejected by the High Court), the British government eventually conceded, and the required funding has been released and steps have been taken to progress the backlog of cases.
PFC continues to support bereaved families through the coronial process, including the recent inquest into the deaths of eleven people in August 1971 known as the ‘Ballymurphy Massacre.’ This inquest commenced in November 2018 and is due to end in September 2019. It is clear from the evidence heard in court to date that coronial inquiries fulfil an important Article 2 function, particularly in facilitating participation of the next-of-kin and allowing evidence to be tested and challenged in a way that is open to public scrutiny. The Court Service has scheduled two weeks of hearings in the Autumn to consider the outstanding legacy inquests and determine their readiness. We cautiously welcome any progress to expedite the backlog of cases.
It is disappointing, however, that state agencies including the Ministry of Defence (MOD) and the PSNI, continue to impede the coroner’s ability to fulfil his/ her important function through unacceptable delays in providing materials and other information.
For example, the PFC supports the family of Gerard Hampson, whose body was recovered from Lough Neagh in 2008. Mr Hampson had gone missing in suspicious circumstances several weeks earlier, yet the PSNI’s investigation into the disappearance and death was marred by a catalogue of significant failures, something heavily criticised by the Police Ombudsman in -his report –of 2016 -which resulted in 8 officers being disciplined. The inquest into Mr Hampson’s death was due to commence in April 2019, however it was postponed until October 2019 as it became clear to the Coroner that the PSNI held a significant volume of sensitive information that may be damaging to the public interest if disclosed, and had to be considered under public interest immunity (PII) provisions. At a hearing held in April 2019 the family -was assured by the Coroner that the inquest would proceed in the autumn, and the PSNI would be expected to examine the materials to identify potential PII materials expeditiously. However, at a further preliminary hearing on 10th July 2019 it became clear that almost nothing had been done to progress discovery. Coroner McCrisken said the length of time it had taken the PSNI to provide any documentation was ‘actually a joke’ -, and he ordered that the review process of the document must be completed by 5pm that day or he was going to hand over the entire non-sensitive disclosure to the next-of-kin (which was complied with.)
It is important to note that throughout the seven preliminary hearings to date neither the Hampson family nor their legal representatives had received any discovery until the PSNI -was forced to hand it over earlier this month. They have yet to receive the sensitive materials and have little confidence that the inquest will begin as agreed in October. The family is also concerned that there will have little time to prepare for the inquest if discovery is received so close to the hearing date, particularly as Coroner McCrisken has described the discovery process as ‘“by far the most complicated information process I have been involved in as a coroner”.
Legacy inquests under Stormont House provisions
As highlighted in our February 2019 submission, PFC has concerns regarding provisions within the SHA Bill to limit the role of legacy inquests. The draft Bill states that once the HIU is up and running a coroner would be prevented from holding a legacy inquest until the HIU has completed an investigation into the death (or the HIU closes) and would only have power to proceed with the inquest if there were ‘compelling reasons;’ (See section D of our submission, page 28)
Legacy inquests form part of the package of measures arising from the Mc Kerr group of cases, and PFC submits that those inquests that have already been granted by the Attorney General must proceed. Families have a legitimate expectation that the inquests will be heard, and it would be unfair to deny this. It is also imperative that those families who have never received an inquest should do so without delay, for example, the case of murdered GAA official Sean Brown.
Independent Inquiry into the circumstances of the murder of Pat Finucane
The Committee is aware that the UK Supreme Court (UKSC) handed down -its judgment in an application for judicial review brought by Geraldine Finucane on 27th February 2019 and declared that ‘there has not been an article 2 compliant inquiry into the death of Patrick Finucane.”
UKSC held that the review into the circumstances of Mr Finucane’s death carried out by Desmond De Silva “fell short of being an effective Article 2 compliant inquiry” stating that Sir Desmond did not have the power to compel the attendance of witnesses, those who met him were not subject to testing as to the accuracy of their evidence, and a potentially critical witness was excused from attending for questioning. UKSC held that the review by Sir Desmond, even when taken with earlier inquiries, was not sufficient to fulfil the requirements of Article 2. UKSC stated that it was for the state to decide what form of investigation (if one is now feasible) is. required to meet the procedural requirement under Article 2.
We note that the British government states that -it is undertaking a ‘review’ of the Supreme Court’s judgment to determine to what extent it is feasible to rectify in practice the technical shortcomings found in the de Silva review. The British government also submits that it is ‘too soon’ to draw any conclusions from the UKSC judgment for the supervision of the execution of the Finucane v United Kingdom case in the Committee of Ministers. We disagree and submit that it is vital that the Committee reopens this aspect of the McKerr group of cases, and - its oversight and enforceability remit. The British government has, at every opportunity, resisted the necessity to carry out a proper Article 2 compliant investigation into the circumstances of Pat Finucane’s murder. Even with the UKSC’s judgement confirming that every examination to date has been inadequate, we still fear that the government will try to block the inquiry necessary to examine this case fully. We support the Finucane family’s assertion that only a public inquiry will suffice. Further delay or obstruction in establishing a public inquiry undermines public confidence in the rule of law and the governing institutions. We have, however, no faith that the British government will fulfil its obligations to the Finucane family without the Committee’s oversight.
PFC brings the Committee’s attention to the cases of Julie Livingstone and Paul Whitters. Julie was 14 years old when she was struck in the head by a plastic baton fired by a British soldier from inside an army vehicle in Belfast, in May 1981. Paul Whitters was 15 years old when he was struck by a plastic baton fired by an RUC officer, in Derry, also in May 1981. Paul survived for ten days and then passed away. Early this year the PFC became aware that there were two files in the National Archives concerning Paul and Julie’s deaths.
‘File CJ4/4402: Paul Whitters: killed by a plastic baton round, April 1981’ marked closed in 2018 until 1 January 2059 on ‘health and safety’ grounds, and on the grounds that it contains personal information concerning a third party. ‘File CJ4/4403: Julie Livingstone: killed by a plastic baton round, May 1981’ was marked closed earlier this year until 2064 on the same grounds.
Both the Livingstone and Whitters families wrote to the former Secretary of State (SoS), Karen Bradley, seeking a meeting and requesting that the files be released to the families. On 17th July 2019 Paul’s mother, Helen, and Julie’s brother, Robin, supported by the PFC and Relatives for Justice, met with Karen Bradley and five other governmental officials including those from the Northern Ireland Office (NIO).
At the meeting, the SoS and her officials explained the following: they were NIO files; they had been assessed and closed (by the NIO) in 2011 and 2014 respectively; no one at the meeting knew why they had been closed; no one knew what was in the files; they couldn’t access the files, because they were now closed, to determine whether information could be shared with the families. The families were advised to make a Freedom of Information request.
The families left the meeting feeling deeply frustrated and insulted. It is unacceptable that information concerning the death of children at the hands of state actors can be withheld from bereaved families until a time when their next of kin would also have passed away. The families explained to the NIO, both in advance and at the meeting, that initiating an FOI request would result in a copy of whatever is released to the families (the applicants) being also released into the public domain, so it is likely that the information would be heavily redacted (if they would receive anything at all.) The families are taking advice on what the next steps are.
Statute of limitations for former and serving members of the British Armed Forces
In our Feburary 2019 submission, PFC outlined attempts among some members of the British government to bring forward a statute of limitations for former or serving members of the British armed forces. PFC submits that a unilateral statute would be unlawful under domestic and international law, amounting to state impunity. Legal experts have also advised government that it would result in a de facto amnesty for all conflict actors.
The Committee may be aware of the recent House of Commons Defence Committee Report - Drawing a Line: Protecting veterans by a Statute of Limitations, published 22nd July 2019. The House of Commons Defence Committee endorses three options for reforming the current system of legacy investigations –which it - hopes would be applied to Northern Ireland as well as other conflicts: (1) Introducing a presumption against prosecution; (2) Reforming the Human Rights Act and: (3) Introducing a Statute of Limitations. With particular reference to this jurisdiction, the Committee agreed with the recommendation of their predecessor Committee that the government should introduce a ‘Qualified Statute of Limitations’ for Northern Ireland for Service personnel and veterans, coupled with a ‘truth recovery mechanism’ for families.
The Committee draws heavily on the evidence provided by Professor Richard Elkins when considering the government’s human rights obligations. Elkins is critical of both the jurisprudence of the ECtHR and the domestic application of the Human Rights Act, stating that he believes both have been ‘stretched’ beyond what was originally envisaged by Convention and 1999 Act respectively.
The Committee blames the Strasbourg court for the current difficulties it faces - in dealing with allegations against state actors for serious abuses including those concerning the loss of lives. They state that ‘it is clear that the ECtHR’s expansionism is one of the main drivers of the relentless cycle of legacy investigations.’
Relying on Elkins advice, the Committee not only seeks to amend the Human Rights Act but goes further than this. They anticipate that a challenge to the ECtHR is likely, and state that
‘...we remind the government that if the ECtHR seeks to overrule these plans, the option will remain of changing the UK’s stance in relation to the ECHR on the lines recommended by Professor Richard Elkins.”
It is deeply concerning that there are those advising government who are willing to sacrifice over seven decades of fundamental human rights protection enshrined in the Convention, to ‘protect’ veterans who have allegedly abused those rights. PFC is further concerned that the new Prime Minister, Boris Johnson, has recently made comments in the media that suggest he may be persuaded to bow to this lobby.
 Available here: https://www.patfinucanecentre.org/human-rights/pfc-submission-un-commit…
 McQuillan (Margaret’s) Application  NIQB 99
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680649551 page 2.
 Hughes (Brigid) Application  NIQB 30
 BBC news, Sean Brown murder: Inquest postponed indefinitely, 12 May 2015, Available at
https://www.bbc.co.uk/news/uk-northern-ireland-foyle-west-31435038 (Accessed 13.02.19)
In the matter of an application by Geraldine Finucane for Judicial Review (Northern Ireland)  UKSC 7
 Letter from Whitters’ family to Secretary of State: https://www.patfinucanecentre.org/state-violence/mother-paul-whitters-calls-sos-bradley-release-files & Letter from Livingstone family to Secretary of State: https://www.relativesforjustice.com/the-scandal-of-hidden-state-files-on-murdered-children
 The joint statement from PFC and RFJ on behalf of the Livingstone & Whitters families can be accessed here: https://www.patfinucanecentre.org/state-violence/families-children-kill…
 Defence Select Committee, Investigations into fatalities in Northern Ireland involving British military
personnel, 25 April 2017, para 40. Available at:
https://news.sky.com/story/boris-johnson-promises-to-end-unfair-prosecutions-of-northern-ireland-veterans-11761485 On 12.07.19