RightsNI is delighted to welcome this guest post from Marny Requa. Marny Requa is a Lecturer in the School of Law at Queen’s University Belfast. Her analysis of the McCaughey judgment is in the current issue of Public Law (October 2012): ‘Keeping up with Strasbourg: Article 2 obligations and Northern Ireland’s pending inquests’. She can be contacted at firstname.lastname@example.org.
The progress of inquests into controversial deaths in Northern Ireland was set back again last week when Senior Coroner John Leckey suspended 14 inquests during a preliminary hearing in one of the cases. The High Court has now granted leave to a number of the families to judicially review the suspensions, and that challenge will be heard in February 2013. The relevant inquests reportedly include those into the deaths of 13 people killed by the Army in 1971 and 1972 – Manus Deery (age 15), Francis Rowntree (age 11), who was hit by a plastic bullet, and eleven civilians in the Ballymurphy area of Belfast – as well as an inquest into the death of Gerard Slane (age 27), shot by members of the Ulster Defence Association in 1988. Allegations of collusion between loyalist paramilitaries and the security forces subsequently emerged regarding Slane’s death. Leckey’s decisions may affect other cases as well.
Each of the inquests was referred to the Coroners Service by the Attorney General, John Larkin QC, under section 14 of the Coroners Act (Northern Ireland) 1959, which governs the law relating to coroners and inquests. The referrals mentioned above came after the UK Supreme Court held in May 2011 that, in certain circumstances, investigations into historic deaths (precisely, those before October 2000 when the Human Rights Act 1998 (HRA) came into effect) should comply with the procedural requirements of Article 2 of the European Convention on Human Rights (ECHR) (Re McCaughey’s Application  UKSC 20 – press summary here, judgment here; see blog comments from Gordon Anthony and Aileen McColgan ).
The distinction between an Article 2-compliant investigation and one that is not can be significant. In some cases Article 2 requires that the legal obligation for coroners and/or juries to determine ‘how’ the deceased came to his or her death should be taken to mean ‘by what means and in what circumstance’ rather than simply ‘by what means’ (see R (on the application of Middleton) v HM Coroner for Western Somerset  UKHL 10). In simple cases, the two interpretations will result in the same inquiry, but in others investigating the ‘circumstances’ of a death can lead to a wider investigation, for example the planning and control of army or police operations and related policy. Prior to McCaughey, the courts had held that there was no domestic duty to hold Article 2-compliant inquests into pre-HRA deaths (Jordan v Lord Chancellor  UKHL 14). Coroners are provided with significant latitude as to how they conduct inquests, so long as the inquests seek to answer the relevant questions.
I noted above that the new obligation under McCaughey arises in ‘certain circumstances’. The judgment was ambiguous about which types of cases would require an Article 2-compliant inquest, reflecting the vagaries of European jurisprudence on the Article 2 duty (see Šilih v Slovenia (2009) 49 EHRR 37, press release here). But in directing that there was a domestic duty to hold Article 2-compliant inquests into the deaths of Martin McCaughey and Dessie Grew, killed by British Army officers in 1990, justices of the Supreme Court noted (variously) that a significant portion of the investigation into the deaths would be occurring post-HRA, the inquests were already planned by the government, and the deaths resulted from the acts of state agents.
In the aftermath of McCaughey, Attorney General Larkin stated that the inquest system would be ‘front and centre’ in Northern Ireland’s efforts to deal with controversial deaths of the past, although he also made clear that by themselves inquests ‘cannot provide a comprehensive solution to the troubled past of Northern Ireland’. In ordering the suspensions on 15 November, the Senior Coroner questioned whether Larkin’s referrals of the 14 cases under s.14 were ultra vires, or outside of his powers, because national security issues arise in them. (National security matters were not devolved under the Northern Ireland Act 1998 (s.4 and para.17, sched.2).) There is no indication that Leckey is challenging the Coroner Service’s jurisdiction to investigate cases which touch on national security issues, which indeed would be surprising given his efforts in previous cases to obtain from the PSNI the Stalker/Sampson reports into an alleged security force ‘shoot-to-kill policy’ during the conflict. Rather, according to media reports, he is questioning whether decisions on referrals in these cases should have been made instead by the Advocate General for Northern Ireland (an office held by the Attorney General for England and Wales).
A thorough assessment of the issues is only possible once the Coroner’s submissions are made to the High Court, but a few preliminary points can be made.
- First, the Attorney General referred the Ballymurphy cases to the Coroner exactly a year ago; other cases had been referred prior to McCaughey. Even given the need for the Coroner to receive legal advice on the issue, it is unclear why the referral question had not been raised to those with an interest in each of the relevant inquests before now.
- Second, it seems the families of victims were not given the opportunity to make submissions on the topic, a potential procedural irregularity which is also disheartening to families, who have suffered through decades of delays in the cases. The interests of the next of kin are of key importance to an effective investigation under Article 2 of the ECHR.
- Finally, the matters referred by the Attorney General were the deaths themselves. It can be queried whether these deaths can be considered outside the Attorney General’s jurisdiction (on the basis that investigations into some of them may raise national security issues) before the investigations have taken place.
Even if the families are successful in challenging the Senior Coroner’s decisions, it will be several months before the inquests will resume.