CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 28 mai 2002

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THE UNITED KINGDOM     (Application no. 43290/98)     JUDGMENT     STRASBOURG   28 May 2002         FINAL   28/08/2002           This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of McShane v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Mr   M. Pellonpää , President,   Sir   Nicolas Bratza ,   Mr   A. Pastor Ridruejo ,   Mr   J. Makarczyk ,   Mrs   V. Strážnická ,   Mr   R. Maruste ,   Mr   S. Pavlovschi , judges , and Mr M. O' Boyle , Section Registrar , Having deliberated in private on 7 May 2002, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no.   43290/98) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a United States citizen, Mrs   Treasa McShane (“the applicant”), on 3 October 1996. 2.     The applicant was represented before the Court by Mr P. Mageean, a solicitor with the Committee for the Administration of Justice in Belfast. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office, London. 3.     The applicant alleged that her husband, Dermot McShane, was killed by the security forces during a riot in Belfast and that she had no access to court or effective remedy in respect of his death. She invoked Articles 2, 6, 13 and 14 of the Convention. 4.     The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11). 5.     The application was allocated to the Third Section of the Court (Rule   52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. 6.     By a decision of 12 December 2000, the Chamber declared the application admissible. 7.     The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine ). The parties filed further written submissions. 8.     On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     In July 1996, there were disturbances throughout Northern Ireland. On 7 July 1996, the Royal Ulster Constabulary (RUC) had announced that they would not allow a march by the loyalist Orange Order from Drumcree Church to the Orange Lodge in Portadown to pass through the mainly Catholic residential area of the Garvaghy Road. Members of the Orange Order gathered in the area, and demonstrations occurred in Londonderry (Derry) and Belfast. On 11 July 1996, the RUC reversed its decision and at 11 a.m. the march proceeded through the Garvaghy Road. 10.     The following day, 12 July 1996, another controversial march was allowed through the mainly nationalist area of the Lower Ormagh Road in Belfast. That evening, there was a major disturbance in Londonderry, characterised by the use of petrol bombs and the substantial use of “baton rounds”, or plastic bullets, by the RUC and the British Army. 11.     Dermot McShane, the husband of the applicant, had been with friends in a bar close to Londonderry city centre during that night. According to a friend who was with him, they left the bar at about 1.30 a.m. Close to the junction of Little James Street and Great James Street, a large crowd of people had gathered and were throwing missiles at the police. Military reinforcements were called. Police were firing large numbers of plastic baton rounds at the crowd. A commercial skip and a large piece of hoarding were being used by persons in the crowd to shield them from plastic baton rounds as they moved towards the police. An RUC inspector at the scene consulted with army personnel who were arriving and requested that the barricades be removed. According to his statement, he instructed the driver of a Saxon armoured personnel carrier (“the APC”), Private P., to advance towards the obstruction. 12.     Dermot McShane fell underneath the hoarding over which the APC advanced. The circumstances in which the APC struck the hoarding, its speed, and the length of time which it remained on the hoarding are subject to dispute. 13.     RUC officers reached Dermot McShane and arranged for his transfer by ambulance to hospital where he died a short time later. According to the pathologist who carried out the post mortem examination, his injuries were consistent with having been run over by the wheels of a vehicle while lying underneath a sheet of hoarding. He also had injuries on the thigh, consistent with being struck by a plastic baton round. No traces of petrol, paraffin or any type of fire accelerant were found which might suggest that Dermot McShane had been in contact with petrol bombs. 1.     The police investigation and decision of the Director of Public prosecutions 14.     At 6.17 a.m. on 13 July 1996, Detective Constable Cooper attended the scene at which Dermot McShane had been hit. He removed the hoarding and a bloodstained bandage for inspection. Shortly afterwards, the scene was secured. The Government submitted that the delay in crime scene procedures was due to crowd violence. 15.     At 8 a.m., Detective Superintendent Houston was directed to undertake the investigation into the death. He appointed Detective Chief Inspector Cooke as Deputy Senior Investigating Officer. 16.     At 10.05 a.m., photographs were taken of the scene. DS Houston attended, making arrangements inter alia for the mapping of the scene. 17.     In the afternoon of 13 July 1996, statements were collected by the police from 13 members of the army, regarding the events. This included a statement from Private P., the driver of the APC which hit Dermot McShane. DS Houston informed the driver that he would interview him once he had undertaken other inquiries. The interview commenced at 7.10   p.m. and terminated at 7.16 p.m. After being cautioned, the driver replied that he had nothing to say at that stage. The driver had provided a pre-prepared written statement and was accompanied by his legal adviser. The statement said inter alia ; “I charged a sheet of corrugated iron in the centre of the street which was my target. While approaching the barricade I saw around 5/6 persons round it, most ran away on sighting me approaching but [I] was unsure that I did or did not cause injury to any person.” 18.     On 14 July 1996, the RUC began interviewing other witnesses. On 17 July 1996, the RUC issued a press release appealing for witnesses to the events to come forward. They collected statements from 115 persons, including 39 who had witnessed the relevant events. Of these, four persons were civilian witnesses and the remainder were RUC and army personnel. Of the 115 statements, 33 were taken in the first week following the incident and a further 28 in the following two weeks. 19.     On 6 December 1996, the driver of the APC was interviewed again. In his statement, he stated that on the night in question he had been the driver of the control centre vehicle, which held the spare ammunition, shields and supplies. He was in position on Great James Street at the junction with Little James Street. He saw missiles being thrown, including petrol bombs and more than a hundred rioters in conflict with the RUC. He had been instructed by an RUC inspector to remove the barricade, which was being used by rioters for cover. As he neared the barricade, he had revved the engine to give the rioters time to get away from the barricade. The vehicle hit the barricade which fell backwards. The vehicle mounted it and drove over. At that time, the driver was alone in the APC, without a person looking out and giving directions. His vision was through a slit, about letter box size 7-8 feet above the road. He could see only the top of the barricade, not behind or under it. He had not been aware that anyone was injured. When he stopped and people had climbed on the vehicle, saying that someone was injured, he had thought that this was a “come on”. When shown a video of the incident, he stated that he could see the vehicle brake lights illuminated, indicating that the vehicle stopped prior to striking the hoarding. He confirmed that it was customary for the driver of such a vehicle to be accompanied by a commander who looked out and gave directions from the top hatch, and who was in constant communication by radio with the driver. He was however alone in the vehicle on this occasion. 20.     Expert evidence was gathered, including post mortem examinations of the deceased and various forensic analyses, inter alia of Dermot McShane's blood, hair and clothing, the hoarding which he had used as a shield and the APC which had hit him. According to the applicant, the APC was not examined until two weeks after the incident and the report on the examination was not provided to her until much later. Other evidence collected included a transcript of the army and RUC communications at the time and a video of the incident recorded by Sky News. 21.     On 9 June 1997, the RUC sent the file of relevant material to the DPP. Further inquiries were made by the police, leading to a final report to the DPP on 2 March 1998. 22.     On 1 April 1998, the DPP directed that there was insufficient evidence to provide a reasonable prospect of conviction for any offence of murder, manslaughter or dangerous driving contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. The applicant was formally notified of the decision not to bring criminal proceedings by letter dated 6 April 1998. 23.     On 19 June 1998, the applicant lodged an application for judicial review of the decision not to prosecute in relation to the death of her husband. At a leave hearing on 30 June 1998, it transpired that the applicant had never formally requested the reasons for the decision. The hearing was adjourned pending that request. 24.     By letter dated 11 September 1998, the DPP stated: “As you are aware, the death of Dermot Patrick McShane occurred at approximately 1.30 a.m. on 13 July 1996 at Little James Street, Londonderry in circumstances of very serious and sustained rioting. Disorder was concentrated in the Strand Road, Great James Street, Little James Street, Waterloo Place and William Street areas of the city. The ferocity of the rioting was such that the police required military assistance. A skip and hoarding were used by the rioters at the time in question in Little James Street as a shield/barricade from behind which missiles, including petrol bombs, were launched at police and military positioned at the junction of Great James Street and Little James Street. A decision was taken that baton rounds, which had been discharged to contain an advancing group of rioters shielded by the skip and hoarding, were ineffective [and] the barricade should be removed. A military vehicle driven by a Private was deployed for this purpose, advanced and struck the hoarding knocking it to the ground. The deceased was behind and in very close proximity to the barricade as it was being removed. The Private stated, inter alia, during interview under caution that he could not see anyone behind it. The deceased sustained multiple injuries consistent with a crushing mechanism, which proved fatal. The police investigation contains, inter alia , some 39 witness statements from persons who provided differing accounts of the removal of the hoarding, four of whom were civilians. The remainder were by police and military personnel. In addition, the incident was captured on film by a Sky News TV crew. The Private in question was interviewed by the police. He provided a witness statement on 13 July 1996. He was interviewed after caution on 6 December 1996. On that date, he provided oral answers and made a written statement after caution in regard to his conduct. The Private stated, inter alia , that as he approached the 'barricade' he 'began to brake and revved up the engine to scare the rioters and clear the barricade' and was 'crawling forward' when he hit the barricade. On 19 December a further interim Direction was issued to the Chief Constable. The Director wished to obtain evidence from the Forensic Science Agency of Northern Ireland, inter alia , in respect of the speed the vehicle in question was travelling at or prior to the moment of impact, and the speed which the vehicle in question was capable of reaching in the time available. A forensic report was received in this office on 2 March 1998. This indicated, inter alia , that the vehicle in question could reach a theoretical maximum speed of 16 mph from a standing start at the junction of Little and Great James Street to the position of the barrier. It was noted that the vehicle was shown on the video to be braking over an unknown distance prior to impact with the barrier and that it was 'axiomatic' that the speed of the vehicle at the point of impact was substantially less than 16 mph. All available evidence was then the subject of further careful consideration. The conclusion reached was that there was insufficient evidence to provide a reasonable prospect of conviction for the offence of murder. Further, there was insufficient evidence to provide a reasonable prospect of establishing the requisite degree of negligence for the offence of manslaughter. In addition, consideration was given to whether the evidence was sufficient to provide a reasonable prospect of conviction of causing death by dangerous driving, contrary to Article 9 of the Road Traffic (Northern Ireland) Order 1995. It was concluded that there was no reasonable prospect of establishing that the Private's driving fell far below what would be expected of a competent and careful driver having regard to all the circumstances. ...” 25.     On 18 September 1998, the applicant withdrew her application for judicial review. 2.     Anonymous witnesses 26.     In October 1996, the Committee for the Administration of Justice (CAJ) published a booket entitled “The Misrule of Law” criticising the handling of events during the summer of 1996. Appendix III included extracts from certain anonymous witness statements. 27.     On 12 March 1997, the police wrote to the CAJ requesting that information relating to the names and addresses of witnesses be made available to the police enquiry. The applicant states that the CAJ contacted the witnesses to confirm whether they wished their names to be made available to the police. As they did not, the CAJ informed the police accordingly. 28.     In the application submitted to the Commission on 18 November 1996, the applicant included a number of extracts from twelve statements taken from anonymous witnesses by the applicant's solicitor. 29.     They described the events of the evening in the following terms. (i)     Witness No. 80 described how he was in the area at about 1 a.m. He stated that there was a skip in Little James Street, behind which approximately 50 people were hiding. Next to the skip were 6 or 7 people hiding behind a large wooden board, approximately 2 metres by 1 metre, throwing petrol bombs, about 30 in an hour. At the other end of the street were approximately 60 police officers of the RUC in riot equipment firing plastic bullets. (ii)     Witness No. 86 was in the area taking photographs, behind the RUC and British Army lines. He stated that in Little James Street there was a barricade of a burning car and a skip, which had been there from the night before. A number of army vehicles, including Saxon APCs, formed a cordon across the road, and there were about 20-30 soldiers and approximately the same number of RUC officers behind them. There was an intensive barrage of missiles being thrown towards the cordon, and plastic bullets were being fired back continuously. He stated that there was considerable confusion. The cordon of vehicles then moved forward at walking speed with continuous firing of plastic bullets and some missiles incoming from the crowd. He stated that he observed RUC officers recover the body of Dermot McShane and attempt to administer first aid. There were four other photographers and a TV crew present, who were taking pictures until stopped from doing so by the RUC. This witness stated that in a 4½ hour period he observed that the RUC used 30 ammunition boxes, containing a total of 750 rounds of plastic bullets, and that the Army were firing a similar amount. (iii)     Witness No. 101 was one of the people behind the hoarding, which he stated they were pushing towards the police, who were firing plastic bullets. The police made an advance towards the hoarding in their vehicles, and the witness dropped the hoarding. He saw it fall on Dermot McShane. He stated that he tried to indicate that there was someone under the hoarding, but one of the vehicles drove over it. At this point a group of police and soldiers came towards him with batons. He made a statement to the police. (iv)     Witness No. 100 was observing the events from his apartment. He saw the vehicle ram into the hoarding at a speed of 35-40 km per hour. The RUC moved in with batons. (v)     Witness No. 99 observed the vehicle come forwards onto the hoarding, and in his opinion it must have been obvious that someone was holding the board up. He stated that he shouted that there was someone under the board, but that the vehicle remained on top of it for some 10-15 minutes. (vi)     Witness No. 91 stated that when the vehicle was on top of the board, he shouted to the driver that there was a man underneath, but it stayed on top for 4-5 minutes. He attempted to pull Dermot McShane out. 30.     The Government obtained the Court's permission to submit copies of these extracts to the DPP, which occurred on 14 February 2000, and an adjournment in the Court's proceedings was granted to enable the DPP to consider whether any action was appropriate. The DPP enquired whether he was able to furnish copies of the statements to the police and whether the makers of the statements could be identified. 31.     The applicant informed the Court on 27 March 2000 that the witnesses had given their statements on condition that their identity would not be disclosed to the police. They feared that they would become victims of harassment if their identities became known. 32.     In the light of these constraints, the DPP concluded that there were no further steps which he could properly take under Article 6(3) of the Prosecution of Offences (Northern Ireland) Order to obtain further relevant information. Accordingly, his direction of 1 April 1998 still stood. 3.     The inquest proceedings 33.     The investigation file was forwarded to Sergeant McFetridge on 22   May 1998 to prepare an inquest file. He briefed the Coroner as to the progress of the file on 26 November 1998. The inquest file was forwarded to the Crime Branch RUC Headquarters for examination on 7 January 1999. After examination, it was delivered to the Coroner's office on 18 February 1999. 34.     The Coroner listed the inquest for 13 and 14 December 1999 as the first suitable dates. A number of documents were provided to the applicant by the RUC acting under Home Office Circular 20/99 on or about 19   November 1999. On 24 November 1999, the applicant requested an adjournment from the Coroner while she sought disclosure of further documents from the RUC and Ministry of Defence. The applicant considered that documents were missing from those disclosed, including the statement of the APC driver taken by the RUC. The Coroner acceded to her request. 35.     By letter dated 7 February 2000 to the RUC, the applicant made reference to previous correspondence about disclosure of documents and requested copies of radio transmission transcripts, occurrence book entries, notebooks, diaries and journals of RUC officers involved in the matter and forensic reports concerning the examination at the scene of the incident and the relevant vehicle. 36.     By letter dated 11 April 2000, the RUC responded that in addition to the documents already made available arrangements had been made for all remaining written information obtained by the RUC concerning the death of Dermot McShane to be furnished. This included the report on the vehicle and the typed transcripts of RUC communication logs. It was stated that none of the entries in RUC notebooks were at variance with the statements already provided, though sight of these notebooks would be provided for the purpose of the inquest if requested. 37.     By letter dated 1 September 2000, the Coroner informed the applicant that he had been told that full disclosure had been made by the RUC and, expressing his desire to proceed with the Inquest as soon as possible, asked to be informed specifically of any matters that might still be outstanding. By letter dated 3 November 2000, the Coroner requested a response to his earlier letter. By letter of 22 December 2000, the Coroner again requested confirmation from the applicant's representatives that they had received all necessary disclosure. 38.     By letter dated 19 February 2001, the applicant's representatives stated that they had been informed that they were in possession of all material to which they were entitled under Home Office Circular 20/1999. As they had only received witness statements and radio transmission transcripts, they requested confirmation from the Coroner as to whether he had received any other documents, including the police investigation report, and proposed that the Coroner should request the RUC to provide all material relevant to the death of Dermot McShane. The Coroner did not answer the letter until he had an opportunity to consider the Court's judgments in the Hugh Jordan v. the United Kingdom series of cases (cited at paragraph 73 below). On 30 May 2001, the Northern Ireland Court Service, which covered the Coroner's Branch, informed the applicant that the Coroner for Greater Belfast was consulting the Lord Chancellor concerning the Government's response to those judgments and suggested that the preliminary hearing on the future conduct of the inquest concerning Dermot McShane should await the meeting held by all the coroners concerning the procedures to be adopted in future. 39.     By letter dated 15 August 2001, the Coroner informed the Northern Ireland Court Service that he was still awaiting confirmation from the applicant that full disclosure had been made and that it had been suggested that matters wait until after developments in inquests to take place in Belfast in September and which related to possible consequences of the Court's judgments. He confirmed that the delay in the case until the present had been at the request of the next-of-kin. 40.     In October 2001, it came to light that three statements taken at a late stage in the inquiry had not been disclosed and copies were provided to the applicant. 4.     Civil proceedings 41.     By writ issued on 19 August 1999, the applicant commenced proceedings against the Ministry of Defence, the Chief Constable of the RUC and the Secretary of State for Northern Ireland, claiming damages in her own right and for the estate of Dermot McShane, arising out of the alleged negligence of the defendants and alleged breach of statutory duty. The grounds of negligence included the speed and manner in which the Saxon APC was driven, the failure to listen to the warnings given that a body was trapped under the hoarding, the failure to instruct the driver of the APC in appropriate tactics, the employment of a method of riot control which they knew or ought to have known would cause death or serious injury and the failure to carry out a proper strategic assessment of the security situation before ordering the APC to charge civilians. 42.     The defendants served a defence dated 20 June 2000, in which they claimed, inter alia , that the action was statute-barred as the claim had not been lodged within three years of the death. They also served a notice for further and better particulars. 5.     Complaint by the RUC to the Law Society concerning the applicant's solicitor in the domestic proceedings 43.     On 19 November 1999 statements obtained during the police investigation were disclosed by the RUC to Mrs C., the applicant's solicitor in the inquest, under cover of an undertaking by her to maintain the documents as confidential and not to use the documents for any other purpose than the inquest or to disclose the documents or information to any other third party save her clients. 44.     The RUC became concerned that Mrs C. had breached her undertaking as the Committee for Administration for Justice, who represent the applicant before the Court, had used extracts from some of the statements in their submissions to the Court. By letter dated 9 November 2000, the RUC (Legal Services Branch) wrote to Mrs C., asking her to confirm that she had not released the documents to any third person or for any purpose other than the inquest. By letter dated 23 March 2001, Mrs C. replied that she believed that she had not in any way breached the undertaking. 45.     By letter dated 2 May 2001, the RUC Legal Adviser wrote to the Law Society of Northern Ireland under the heading “Apparent breach of undertaking”, stating that the written submissions by the CAJ to the Court had contained direct quotes from a number of statements which had been supplied to Mrs C. pursuent to an undertaking of confidentiality. These statements had not been provided to the CAJ by the RUC and neither the CAJ nor Mrs C. had sought permission to use the statements for this purpose. As the only other firm of solicitors with copies of the statements had confirmed that they had not released the documents to any third person, the RUC considered that Mrs C. was responsible either directly or indirectly for supplying the statements to the CAJ in apparent breach of her undertaking. As the undertaking was given between solicitors, this breach was regarded as a serious issue and the Society was asked to treat the letter as a formal complaint. 46.     By letter dated 22 May 2001, the Law Society replied that they did not feel that there was sufficient evidence to show a prima facie case of unprofessional conduct against Mrs C. She had assured the Law Society that she had not breached her undertaking and the Law Society was entitled to rely on her assurance as an officer of the court unless contrary evidence was produced. As Mrs C was not the only legal recipient of the documents, there was every possibility that she could have acted correctly but others did not. The matter would not be pursued further. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Use of lethal force 47.     Section 3 of the Criminal Law Act (Northern Ireland) 1967 provides inter alia : “1.     A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large.” 48.     Self-defence or the defence of others is contained within the concept of prevention of crime (see e.g. Smith and Hogan on Criminal Law).         B.     Inquests 1.     Statutory provisions and rules 49.     The conduct of inquests in Northern Ireland is governed by the Coroners Act (Northern Ireland) 1959 and the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963. These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner, who then has the power to hold an inquest, with or without a jury, for the purpose of ascertaining, with the assistance as appropriate of the evidence of witnesses and reports, inter alia , of post mortem and forensic examinations, who the deceased was and how, when and where he died. 50.     Pursuant to the Coroners Act, every medical practitioner, registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the Coroner (section 7). Every medical practitioner who performs a post- mortem examination has to notify the Coroner of the result in writing (section 29). Whenever a dead body is found, or an unexplained death or death in suspicious circumstances occurs, the police of that district are required to give notice to the Coroner (section 8). 51.     Rules 12 and 13 of the Coroners Rules give power to the coroner to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased. 52.     Where the coroner decides to hold an inquest with a jury, persons are called from the Jury List, compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials. 53.     The matters in issue at an inquest are governed by Rules 15 and 16 of the Coroners Rules: “15.     The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely:- (a)     who the deceased was; (b)     how, when and where the deceased came by his death; (c)     the particulars for the time being required by the Births and Deaths Registration (Northern Ireland) Order 1976 to be registered concerning his death. 16.     Neither the coroner nor the jury shall express any opinion on questions of criminal or civil liability or on any matters other than those referred to in the last foregoing Rule.” 54.     The forms of verdict used in Northern Ireland accord with this recommendation, recording the name and other particulars of the deceased, a statement of the cause of death (e.g. bullet wounds) and findings as to when and where the deceased met his death. In England and Wales, the form of verdict appended to the English Coroners Rules contains a section marked “conclusions of the jury/coroner as to the death” in which conclusions such as “lawfully killed” or “killed unlawfully” are inserted. These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act, but no finding is made that any identified person was criminally liable. 55.     However, in Northern Ireland, the coroner is under a duty (section   6(2) of the Prosecution of Offences Order (Northern Ireland) 1972) to furnish a written report to the DPP where the circumstances of any death appear to disclose that a criminal offence may have been committed. 56.     Until recently, legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges. Legislation which would have provided for legal aid at the hearing of inquests (the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981, Schedule 1 paragraph 5) has not been brought into force. However, on 25 July 2000, the Lord Chancellor announced the establishment of an Extra-Statutory Ex Gratia Scheme to make public funding available for representation for proceedings before Coroners in exceptional inquests in Northern Ireland. In March 2001, he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding. This included inter alia consideration of financial eligibility, whether an effective investigation by the State was needed and whether the inquest was the only way to conduct it, whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship to the deceased. 57.     The coroner enjoys the power to summon witnesses who he thinks should attend the inquest (section 17 of the Act) and he may allow any interested person to examine a witness (Rule 7). In both England and Wales and Northern Ireland, a witness is entitled to rely on the privilege against self-incrimination. In Northern Ireland, this privilege is reinforced by Rule   9(2) which provides that a person suspected of causing the death may not be compelled to give evidence at the inquest. 58.     In relation to both documentary evidence and the oral evidence of witnesses, inquests, like criminal trials, are subject to the law of public interest immunity, which recognises and gives effect to the public interest, such as national security, in the non-disclosure of certain information or certain documents or classes of document. A claim of public interest immunity must be supported by a certificate. 2.     The scope of inquests 59.     Rules 15 and 16 (see above) follow from the recommendation of the Brodrick Committee on Death Certification and Coroners: “... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires, without deducing from those facts any determination of blame... In many cases, perhaps the majority, the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and one which appears to judge the issue itself.” 60.     Domestic courts have made, inter alia , the following comments: “... It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far-reaching issues, but 'how...the deceased came by his death', a far more limited question directed to the means by which the deceased came by his death. ... [Previous judgments] make it clear that when the Brodrick Committee stated that one of the purposes of an inquest is 'To allay rumours or suspicions' this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death.” (Sir Thomas Bingham, MR, Court of Appeal, R. v the Coroner for North Humberside and Scunthorpe ex parte Roy Jamieson , April 1994, unreported) “The cases establish that although the word 'how' is to be widely interpreted, it means 'by what means' rather than in what broad circumstances... In short, the inquiry must focus on matters directly causative of death and must, indeed, be confined to those matters alone...” (Simon Brown LJ, Court of Appeal, R. v. Coroner for Western District of East Sussex, ex parte Homberg and others , (1994) 158 JP 357) “... it should not be forgotten that an inquest is a fact-finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should never be forgotten that there are no parties, no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish the facts. It is an inquisitorial process, a process of investigation quite unlike a trial... It is well recognised that a purpose of an inquest is that rumour may be allayed. But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention. It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation. He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him.” (Lord Lane, Court of Appeal, R. v. South London Coroner ex parte Thompson (1982) 126 SJ 625) 3.     Disclosure of documents 61.     There was no requirement prior to 1999 for the families at inquests to receive copies of the written statements or documents submitted to the Coroner during the inquest. Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings, as the relevant witness came forward to give evidence. 62.     Following the recommendation of the Stephen Lawrence Inquiry, Home Office Circular No. 20/99 (concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty) advised Chief Constables of police forces in England and Wales to make arrangements in such cases for the pre-inquest disclosure of documentary evidence to interested parties. This was to “help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted, and that they and their legal representatives will not be disadvantaged at the inquest”. Such disclosure was recommended to take place 28 days before the inquest. 63.     Paragraph 7 of the Circular stated: “The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation. The Coroner has no power to order the pre-inquest disclosure of such material... Disclosure will therefore be on a voluntary basis.” Paragraph 9 listed some kinds of material which require particular consideration before being disclosed, for example: –     where disclosure of documents might have a prejudicial effect on possible subsequent proceedings (criminal, civil or disciplinary); –     where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family; and –     personal information about third parties not material to the inquest. Paragraph 11 envisaged that there would be non-disclosure of the investigating officer's report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate. 4.     Confidentiality of documents 64.     When documents were supplied by the RUC to the legal representatives of the family of the deceased at an inquest, it was common practice to require an undertaking that the documents would be used only for the purpose of the inquest and would not be disclosed to any third party, besides the clients for whom the lawyer was acting. Consent could be sought for relaxation of the undertaking if the documents became relevant for other purposes. If consent was denied, the courts could direct that the materials could be used (e.g. Sybron Corp. v. Barclays Bank PLC [1985] Ch   299). 65.     In a case brought challenging the requirement by the RUC for such an undertaking on disclosure, In the Matter of an Application by Hugh Jordan for Judicial Review , the High Court on 4 September 2001 found that Article 2 of the Convention did not confer on the relatives any absolute right of access to documents and that it had not been demonstrated that the requirement to give an undertaking would involve any compromise of the effectiveness of the investigation. It was noted that, as the only purpose identified by the applicant's solicitors to which the documents might be put other than the inquest was the case pending in the European Court of Human Rights, the Chief Constable of the RUC had stated that he was prepared to modify the standard undertaking to permit use of the documents before that Court. C.     Police Complaints Procedures 66.     The police complaints procedure was governed at the relevant time by the Police (Northern Ireland) Order 1987 (the 1987 Order). This replaced the Police Complaints Board, which had been set up in 1977, by the Independent Commission for Police Complaints (the ICPC). The ICPC has been replaced from 1 October 2000 by the Police Ombudsman for Northern Ireland appointed under the Police (Northern Ireland) Act 1998. 67.     The ICPC was an independent body, consisting of a chairman, two deputy chairmen and at least four other members. Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of State considered that a criminal offence might have been committed by a police officer, the case was referred to the ICPC. 68.     The ICPC was required under Article 9(1)(a) of the 1987 Order to supervise the investigation of any complaint alleging that the conduct of a RUC officer had resulted in death or serious injury. Its approval was required of the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced (Article 9(5)(b)). A report by the investigating officer was submitted to the ICPC concerning supervised investigations at the same time as to the Chief Constable. Pursuant to Article 9(8) of the 1987 Order, the ICPC issued a statement as to whether the investigation had been conducted to its satisfaction and, if not, specifying any respect in which it had not been so conducted. 69.     The Chief Constable was required under Article 10 of the 1987 Order to determine whether the report indicated that a criminal offence had been committed by a member of the police force. If he so decided and considered that the officer ought to be charged, he was required to send a copy of the report to the DPP. If the DPP decided not to prefer criminal charges, the Chief Constable was required to send a memorandum to the ICPC indicating whether he intended to bring disciplinary proceedings against the officer (Article 10(5)) save where disciplinary proceedings had been brought and the police officer had admitted the charges (Article 11(1)). Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged, or where he considered that no criminal offence had been committed, he was required to send a memorandum indicating whether he intended to bring disciplinary charges and, if not, his reasons for not proposing to do so (Article 11(6) and (7)). 70.     If the ICPC considered that a police officer subject to investigation ought to be charged with a criminal offence, it could direct the Chief Constable to send the DPP a copy of the repo