Delay upon delay: Can Northern Ireland ever deal with its most difficult cases?

Martin McCaughey and Dessie Grew

Martin McCaughey and Dessie Grew

By Barry McCaffrey

DECADES of delays in establishing inquests into state killings in Northern Ireland remain a “serious and extensive problem”, raising questions over whether coroners’ inquests are “structurally capable” of providing grieving families with an effective investigation into the deaths of their loved-ones, it was ruled today.

In what is being regarded as a landmark ruling the European Court of Human Rights (ECHR) said that the British Government had violated the Article 2 rights of the families of IRA men Martin McCaughey and Dessie Grew by failing to hold an inquest into the deaths for more than 20 years.

Article 2 of the European Convention on Human Rights commits member states to carrying out independent, transparent and timely investigations into the deaths of citizens.

The IRA men were shot dead by SAS soldiers at a farmyard near Loughgall in Co Tyrone in October 1990.

ECHR judges considered it “striking” that the IRA men had been killed in October 1990 but that an inquest into their deaths did not begin until March 2012, more than 21 years later.

Read The Detail’s previous stories on the McCaughey and Grew inquest here and here

The Detail can reveal that there are currently 34 similar outstanding inquest cases which have faced protracted delays, involving the deaths of 61 people.

ECHR judges said that the manner in which key issues in these cases are routinely dealt with “inevitably significantly delayed” investigations and inquests into security force killings but also called into question the ability of coroners’ courts to deal with state killings.

“The fact that it was necessary to postpone the applicants’ (Grew/McCaughey) inquest so frequently and for such long periods pending clarifying judicial review actions demonstrates to the court that the inquest process itself was not structurally capable at the relevant time of providing the applicants with access to an effective investigation which would commence promptly and be conducted with due expedition,” they said.

The judges said that protracted investigations into killings carried out by security forces has been marked by major delays which “remain a serious and extensive problem in Northern Ireland”.

Read the ongoing battle between the PSNI, Coroner’s Court and Attorney General’s Office here and here and here and here

The Supreme Court (formerly House of Lords) was told that in July 2011 there were 38 legacy inquest cases, which were outstanding or had only been completed.

Of these, five of the deaths had taken place in 1971/1972 with only one inquest having taken place (in June 2011); 8 other deaths occurred in the 1980s and while provisional dates had been set, no inquests have yet been held; while 18 deaths had taken place in the 1990s in respect of which only one inquest had been held.

The court ruled that the 22 year delay in establishing an inquest into the killing of Martin McCaughey and Dessie Grew could be defined in three clear phases.

The first, from 1990 to 2002, had been categorised by “inordinately long” periods of inactivity during which some disclosure was made by the RUC and PSNI, which was later shown to have been inadequate.

The second period lasted from 2002 until March 2012, when an inquest into the killings finally opened.

This period was characterised by a series of legal challenges launched by the Grew and McCaughey families, which the judges said had been “demonstrably necessary” to drive forward the inquests and to ensure the clarification of important aspects of coronial law and practice including, most notably, the rights of the next-of-kin.

The third phase came in 2000, when the introduction of the Human Rights Act raised questions of relevance to coronial law and, notably, its application to police investigations in to killings which took place before 2000. This issue was not finally resolved until a Supreme Court (formerly House of Lords) judgement in May 2011, which ruled in favour of the Grew and McCaughey families.

Martin McCaughey and Dessie Grew's families leave court

Martin McCaughey and Dessie Grew's families leave court

Highlighting the significant importance of the legal challenges brought by the Grew and McCaughey families in challenging the delays, the judges said:

“The present applicants were centrally involved in these important legal developments. Their inquest was postponed, effectively from 2002-2012, pending their main two judicial review actions, the legal issues clarified in those two actions were, as noted above, crucial for coronial law and practice and the findings were in their favour.”

The families argued that the 22 year wait before an Article 2 compliant inquest was finally established was “excessive, unexplained and demonstrably endemic.”

The families had also challenged the impartiality and independence of the police investigation into the killings.

The court ruled that it could not decide on the issues, which are still subject to ongoing judicial review challenges here.

However the court added: “The consequence of the pending judicial review proceedings is that the investigative process into the shootings of the applicants’ relatives, including the inquest, has still not finished 23 years later.”

Judges unanimously found that the British government had violated the Article 2 rights of the Grew and McCaughey families by failing to address the excessive investigative delay.

The court ruled that the government must: “As a matter of some priority, all necessary and appropriate measures to ensure, in the present case and in similar cases concerning killings by the security forces in Northern Ireland where inquests are pending, that the procedural requirements of Article 2 are complied with expeditiously.”

ECHR judges Zdravka Kalaydjieva (left) and Paul Mahoney (right)

ECHR judges Zdravka Kalaydjieva (left) and Paul Mahoney (right)

Bulgarian judge Zdravka Kalaydjieva said she remained “unconvinced” that the RUC investigation into the IRA men’s deaths had been intended to ‘lead to the identification and punishment of those responsible’.

“The absence of any plausible explanation for the failure to collect key evidence at the time when this was possible, and for attempts to even obstruct this process, should be treated with particular vigilance,” she said.

“In fact the period of demonstrated, if not deliberate, systematic refusals and failures to undertake timely and adequate investigation and to take all necessary steps to investigate arguable allegations under Articles 2 and 3 seem as a matter of principle to make it possible for at least some agents of the state to benefit from virtual impunity as a result of the passage of time’.

English judge, Paul Mahoney, said it seemed “somewhat anomalous” that, 23 years after the deaths of the IRA men, their families’ substantive complaints could be legally characterised as “premature”.

“However, the position is so precisely because the innumerable and excessive delays in the inquest proceedings prevented the investigative process from beginning promptly and from being carried out with reasonable expedition. For this reason, even before the completion of the applicants’ civil action and their latest judicial,” he said.

Speaking after today’s verdict the families’ legal representative Fearghal Shiels, of Madden & Finucane solicitors, said:

“This judgment has vindicated the position of the families, describing their repeated successful legal challenges to secure disclosure of all relevant documents as ‘demonstrably necessary’ in order to progress the inquests and to define important points of law relating to inquest procedure in Northern Ireland.

“The court has declined at this juncture to rule on other contentious issues which occurred during the course of the inquest as these are currently the subject of judicial review proceedings before the domestic courts, but has left it open for these complaints to be re-introduced before the Strasbourg Court if necessary upon the conclusion of those domestic proceedings.”

The Committee on the Administration of Justice (CAJ) gave evidence to the court in the Grew and McCaughey case.

Welcoming today’s verdict, CAJ spokeswoman Gemma McKeown said: “We have consistently raised concerns about the capacity of the current mechanisms put forward to deal with legacy cases. The issue of endemic delay in inquest proceedings is only one obstacle facing many families seeking to find the truth about the death of their loved ones.

“The UK government must now take immediate steps to remedy the structural deficiencies which currently prevent effective and prompt investigations in such cases or it will continue to violate its obligations under the ECHR."

In recent years the British government’s has been repeatedly criticised for a failure to ensure that investigations into state killings are Article 2 compliant (namely that they are independent, effective, prompt and transparent)

In 2001 the British government was fined for failing to properly investigate the deaths of 10 IRA men shot dead by the security forces.

In an effort to ensure that it later complied with its Article 2 commitments the government gave the Police Ombudsman powers to investigate killings carried out by police.

In 2005 the Historical Enquiries Team (HET) was established to investigate more than 3,000 troubles-related killings, including those carried out by members of the security forces.

However the government’s adherence to Art 2 has been called into question in recent years.

In 2011 a Criminal Justice Inspectorate (CJI) report concluded that the Police Ombudsman’s office had suffered a lowering of operational independence with the PSNI under the leadership of Al Hutchinson. Read full story here

That report led to the premature resignation of Mr Hutchinson as Police Ombudsman.

In December 2012 Dr Michael Maguire, who replaced Mr Hutchinson, announced that he was quashing his predecessor’s investigation into a 1994 UVF attack on the Heights Bar in Loughinisland, following allegations that the role of at least one police informer had not been properly investigated.

Earlier this month the Policing Board said that it could no longer support Dave Cox as director of the Historical Enquiries Team (HET) after a report found that the unit failed to properly investigate killings carried out by British army soldiers. Read full story here and here

Read full ECHR judgement here

© The Detail 2013