CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 juillet 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .s85A66119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:14pt } .sE208486F { font-family:Arial; color:#ff0000 } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8859A5EC { margin-top:18pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8DD46EC { margin-top:30pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9F223FEE { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC8702D41 { width:154.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ED160F0 { text-decoration:none } .sCD61FA93 { font-family:Arial; font-size:9.33pt; vertical-align:super; color:#0069d6 } .s76CF415B { page-break-before:always; clear:both } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }   FOURTH SECTION             CASE OF McCAUGHEY AND OTHERS v.   THE   UNITED   KINGDOM   (Application no. 43098/09)             JUDGMENT     STRASBOURG   16 July 2013     FINAL   16/10/2013   This judgment has become final under Article 44 § 2 of the Convention. In the case of McCaughey and Others v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Ineta Ziemele, President ,   Davíd Thór Björgvinsson,   Päivi Hirvelä,   George Nicolaou,   Zdravka Kalaydjieva,   Vincent A. De Gaetano,   Paul Mahoney, judges , and Françoise Elens-Passos, Section Registrar , Having deliberated in private on 25 June 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 43098/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Irish nationals, Mrs Brigid McCaughey, Mr Pat Grew and Ms Letitia Quinn (“the first, second and third applicants”), on 29 July 2009. 2.     The applicants were represented by Mr F. Shiels, of Madden & Finucane Solicitors, Belfast. The United Kingdom Government (“the Government”) were represented by their Agents, Mr M. Kuzmicki and, latterly, by Ms J. Neenan, of the Foreign and Commonwealth Office. 3.     The applicants mainly complained under Article 2 regarding the shooting of their relatives by the security forces and, notably, that there had been an unreasonable use of lethal force and a failure to properly investigate the relevant operation. 4.     On 1 February 2011 the application was communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.     On 2 June 2011 the Government requested the Court to strike out the application in the light of a recent judgment ( In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20). The applicants submitted observations on this request. On 6 September 2011 the Court rejected the Government’s request and the parties’ observations on the admissibility and merits were then requested and submitted. In July 2012 the Court received another round of observations from each party. 6.     On 13 April 2011 the Irish Government declined to exercise their right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court). Further to leave accorded by the President (Article 36 § 2 of the Convention and Rule 44 § 3), third-party comments were received from the Committee on the Administration of Justice, the Equality and Human Rights Commission and the Northern Ireland Human Rights Commission. THE FACTS THE CIRCUMSTANCES OF THE CASE 7.     The first applicant, Mrs Brigid McCaughey, is the mother of Mr   Martin McCaughey. She was born in 1934. The second and third applicants are the father and daughter of Mr Desmond Grew. They were born in 1923 and 1990, respectively. All the applicants live in County Tyrone. The case concerns the shooting of Martin McCaughey and Desmond Grew by security forces in 1990 in Northern Ireland. A.     The circumstances of the case 1.     The shootings 8.     On 9 October 1990 Martin McCaughey and Desmond Grew were shot and killed outside a shed on a farm near Loughgall by soldiers from a specialist unit of the British Army. The autopsy of Martin McCaughey described the cause of death as “laceration of the brain due to bullet wounds to the head”, noting that he had been struck by approximately ten high-velocity bullets in all. The autopsy of Desmond Grew described the cause of death as “multiple injuries due to multiple high-velocity bullet wounds of trunk and limbs”, noting that there were approximately forty-eight wounds made by bullets entering and exiting his body. No shots were fired by the deceased. These shootings were two of several which took place around that time and which gave rise to allegations of a shoot-to-kill policy by the security forces, including by that specialist unit, in Northern Ireland. 9.     The shed had been under surveillance as a suspected arms dump of the Irish Republican Army (IRA). The applicants maintained that the Royal Ulster Constabulary (RUC) had intelligence to the effect that the deceased would collect arms at the shed. The RUC Tasking and Coordination group (“the TCG”) assigned the specialist military unit to the mission given that unit’s specific training and firepower. 10.     On 11 October 1990 the IRA stated publicly that the deceased were IRA volunteers on active service at the time of their deaths. 11.     The first applicant claimed that her family learned about Mr   McCaughey’s death from the media and that a RUC officer rang the deceased’s family home, identified himself and taunted the deceased’s brother. The RUC formally advised the Grew family of Desmond Grew’s death. 2.     The investigation by the RUC 12.     The RUC conducted an investigation into the deaths, beginning with interviews with the soldiers involved in the operation. 13.     The statements of Soldiers A-H, later disclosed to the applicants by the Police Service Northern Ireland (the PSNI replaced the RUC in 2001), stated as follows. Soldier H, the Captain with responsibility for the military unit, received information and briefed Soldiers A, B, C, D, E and F to observe the shed for any terrorist activity and to arrest any persons found to be so engaged. Soldier A was the team leader of the unit with command of the soldiers on the ground. Soldier H was in radio contact with the soldiers on the ground and, on receiving a report of the shooting, he dispatched Soldiers G and I to the scene. The scene was handed over at approximately 12.30 to the RUC and Soldiers A-I returned to base. Later that day (10   October 1990), members of the RUC questioned the soldiers, who were accompanied by Soldier L, from Army Legal Services. Soldier A was the first to fire a shot and he fired twenty rounds. Soldier B fired seventeen rounds, Soldier C fired nineteen rounds and Soldier D fired sixteen rounds, the last two of which were directed at Mr Grew while he was on the ground as the soldier believed Mr Grew had attempted to grab his gun. Soldiers E and F had been close by and did not discharge their weapons. Soldiers A-F believed that they had been under fire, although no shots had been fired at them. Soldier J (involved in pre-deployment training for such specialist military units) and Soldier K (the officer commanding of the unit) were involved in the planning and control of the operation. 3.     The Director of Public Prosecutions (“the DPP”) 14.     In February 1991 the DPP received the investigation file. Between April 1991 and September 1992 the DPP issued eight directions for, inter alia , further investigative steps. On 2 April 1993 the DPP issued a direction of no prosecution ( nolle prosequi ) in respect of the soldiers involved in the shooting. The decision was not notified directly to the families. 4.     Pre-inquest proceedings including judicial review 15.     In 1994 and 1995 the RUC provided certain papers to the coroner which did not include the statements of Soldiers A-I. On 23 December 1997 the coroner advised the applicants that he had received a file from the DPP. This was the first formal contact by the authorities with the applicants. 16.     On 23 April 2002 the coroner wrote to the PSNI requesting statements from the soldiers involved in the shooting. The PSNI provided the statements but refused to provide the report of the RUC Investigating Office, the DPP’s decision or relevant un-redacted intelligence reports. 17.     On 11 June 2002 the applicants wrote to the coroner asking when the inquest would be listed and requesting pre-inquest disclosure. On the same date, they wrote to the PSNI seeking disclosure of all documentation relating to the deaths pursuant to Article 2 of the Convention and section 8 of the Coroner’s Act (Northern Ireland) 1959 (“the 1959 Act”). 18.     On 3 December 2002 the coroner disclosed to the applicants the depositions relating to the inquest. Since statements and documents supplied by the PSNI remained the property of the PSNI, such material could not be disclosed by the coroner to the applicants. (a)     First judicial review proceedings 19.     Following lengthy correspondence between the applicants, the coroner and the PSNI about pre-inquest disclosure, in October 2002 the first applicant’s husband (now deceased) and the second applicant issued judicial review proceedings against the coroner and the PSNI, challenging the latter’s retention of relevant documentation. 20.     On 14 February 2003 leave to apply for judicial review was granted. 21.     On 21 February 2003 the PSNI provided the applicants with the documents supplied by it to the coroner (see paragraph 16 above). This included the soldiers’ statements and two lists of material items of evidence, which lists indicated that certain items could not be located/had deteriorated – there was a reference to a stench on opening the main bag of materials. 22.     On 20 January 2004 the High Court ( McCaughey and Another, Re Application for Judicial Review [2004] NIQB 2) found that the PSNI was under a duty by virtue of section 8 of the 1959 Act and Article 2 of the Convention to provide the coroner with some of the withheld documents and that the inquest had been unduly delayed in breach of Article 2 of the Convention. On 14 January 2005 the Court of Appeal ( Police Service of Northern Ireland v.   McCaughey and Grew [2005] NICA 1, [2005] NI 344) allowed the appeal of the PSNI. Section 8 of the 1959 Act obliged the PSNI to provide the coroner with the information retained when it notified the coroner of the death but the PSNI had no such duty under Article 2 since the Human Rights Act 1998 (“the HRA”) did not apply to a death occurring before its entry into force in 2000 ( In   re   McKerr [2004] UKHL 12, the appellant was the applicant in McKerr v.   the United Kingdom , no.   28883/95, ECHR 2001 ‑ III). 23.     The first applicant’s husband appealed. On 28 March 2007 the House of Lords delivered its judgment ( Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14): this judgment addressed the similar appeal of Hugh Jordan (the applicant in Hugh Jordan v. the United Kingdom , no.   24746/94, 4 May 2001). It found that the HRA did not apply to a pre-HRA death nor, therefore, to the investigation of any such death. However, section 8 of the 1959 Act plainly required the PSNI to disclose to the coroner such information about the deaths as the PSNI was then or thereafter able to obtain, subject to any relevant privilege or immunity. (b)     Subsequent pre-inquest procedures 24.     In the meantime, the coronial system had been restructured so that a new coroner was to be appointed. 25.     In December 2007 the applicants wrote to the senior coroner asking that the inquest be progressed. On 12 February 2008 the coroner’s service responded that the inquest had not yet been allocated to a coroner given workload commitments. However, the senior coroner had written to the PSNI requesting disclosure under section 8 of the 1959 Act. 26.     In July 2008 the applicants again wrote to the senior coroner enquiring about the inquest and pre-inquest disclosure. No response was received. Their further letter of 17 December 2008 to the senior coroner was acknowledged by the coroner’s service. There was no response to their letter of 16 January 2009 to the coroner’s service: they were informally told in February 2009 that a coroner had been appointed. 27.     On 25 June 2009 the applicants sent a letter before action to the coroner’s service about the failure to hold the inquest. On 30 June 2009 the coroner’s service responded stating that the coroner was still awaiting full disclosure from the PSNI which was expected shortly and that the coroner intended to convene a preliminary hearing in September 2009 at which he hoped to be able to set a provisional date for the inquest. 28.     In 2009 the Historical Enquiries Team (“the HET”) advised the coroner that they anticipated commencing an investigation into the shootings of the deceased in January 2010. By a letter of 26 August 2009, the coroner advised the applicants accordingly and asked whether they would wish the inquest to proceed in advance of the HET investigation. 29.     On 4 September 2009 a preliminary inquest hearing was held. The coroner advised that he had received full disclosure from the PSNI. Counsel for the PSNI and the Ministry of Defence (MOD) vouched that this disclosure amounted to full compliance with section 8 of the 1959 Act and that the MOD had no further documentation relating to the incident. Counsel for the PSNI was unable to advise the coroner what steps, if any, had been taken to locate certain missing exhibits. The coroner adjourned the hearing to consider the material and a further preliminary hearing was scheduled for 12 October 2009. The coroner asked for written submissions as to whether the inquest should be adjourned pending the HET investigation: the applicants opposed this orally. Finally, while the coroner noted the potential impact of the judgment of this Court in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009) on coronial law and on the inquest, he was bound by current domestic case-law (including In re McKerr , cited above). Despite this, he considered that it was feasible to conduct a vigorous, thorough and transparent inquest. 30.     On 15 September 2009 the applicants requested the HET to expedite its review and the HET responded that it would conduct an initial assessment and report at the coroner’s hearing of 12 October 2009. 31.     At that hearing on 12 October 2009, the applicants argued that it would be premature to adjourn the inquest pending the HET investigation. They proposed proceeding on certain preliminary inquest issues (disclosure, remit/scope of the inquest and anonymity/public interest immunity matters): the HET issue could be reviewed when the inquest was listed for hearing. The parties and the coroner agreed. The HET agreed to bring forward the start of their investigation. 32.     On 1 December 2009 a further preliminary hearing was held. The coroner directed that the applicants be provided with redacted volumes of the documents which had been provided by the PSNI to the coroner. He scheduled hearings on certain questions (anonymity and screening for some witnesses) for January 2010. 33.     By letter dated 8 December 2009 the coroner proposed a “preliminary definition” of the scope of the inquest as covering the four basic factual questions – the identity of the deceased, the place of death, the time of death and how the deceased came by their deaths. In relation to how, the coroner stated that he would examine evidence concerning the circumstances in which the deceased came to be at the locus of death, the surveillance operation that culminated in the deaths, with reference, in particular, to the purpose and planning of the operation, the actions and state of knowledge of those involved in the operation, as well as the nature and degree of force used. He invited submissions thereon. 34.     In December 2009 files of documents were provided to the applicants. A brief preliminary hearing took place on 22 January 2010. On 2   February 2010 the coroner heard oral submissions on the scope of the inquest and reserved his decision. While the applicants were satisfied with the coroner’s preliminary definition of scope noted above, the PSNI argued for a conventional pre-HRA inquest so that the verdict on “how” the deceased met their deaths should be limited to the question of “by what means” rather than including “what broad circumstances”. 35.     A further preliminary hearing was fixed for September 2010, but did not take place. By letter dated 4 November 2010 the applicants invited the coroner to hold a further preliminary hearing on the questions of disclosure, scope, expert witnesses and site inspection. (c)     Second judicial review proceedings 36.     Following the delivery of the above-cited Šilih judgment, the first and third applicants began judicial review proceedings arguing that their inquest had, consequently, to be Article 2 compliant. 37.     On 23 September 2009 the High Court handed down its decision ( McCaughey and Quinn’s Application [2009] NIQB 77). Leave to apply for judicial review was granted as regards the delay in holding the inquest but it adjourned that question pending any decision at the coroner’s hearing due on 12 October 2009. Leave was, however, refused as regards the applicants’ submission that the House of Lords’ judgment in McKerr was no longer good law following the above-cited Šilih judgment of this Court. 38.     By a judgment of 26 March 2010, the Court of Appeal ( Re McCaughey and Quinn’s Application [2010] NICA 13) granted the applicants leave to apply for judicial review on the two Article 2 grounds not permitted by the High Court but refused those applications on their merits. However, it had a duty under section 3 of the HRA to give effect so far as possible to any relevant legislation compatibly with Convention rights, it was arguable that the Supreme Court could choose to extend Šilih (cited above) to domestic law and therefore leave to appeal to the Supreme Court was granted. 39.     In November 2010 the applicants requested the continuation of the preliminary inquest hearings on certain matters including disclosure, remit, site inspection and expert reports. While not excluding the possibility, the coroner responded that those matters were preferably examined after the Supreme Court judgment. 40.     By a judgment of 18 May 2011, the Supreme Court held by a majority (Lord Rodger of Earlsferry dissenting) that the coroner holding the inquest had to comply with the procedural obligations under Article 2 of the Convention ( In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland) [2011] UKSC 20). In Šilih (cited above), this Court departed from its earlier case-law finding that, in certain circumstances, Article 2 imposed a “detachable” investigative obligation even when the death had occurred before ratification. Those circumstances included instances where a significant proportion of the procedural steps had taken place after the Convention had come into force. Accordingly, the Supreme Court found that, as a matter of international obligation, the present inquest had to comply with Article 2 as far as this was possible under domestic law. Parliament was presumed to have intended that there would be a domestic-law requirement to mirror the international requirement and the HRA which came into effect on 2 October 2000 was to be interpreted by reference to this presumed intention. Any future inquest into a pre-HRA death had to comply with Article 2. 41.     In a concurring judgment, Lord Brown relied on statistical information submitted by the coroner’s service in April 2011 about deaths occurring prior to October 2000: there were sixteen outstanding “legacy inquests” involving twenty-six deaths, an additional six incidents involving eight pre ‑ 2000 deaths (which had been referred by the Attorney General to the coroner); and six inquests had not been held into six deaths which took place between 1994 and 2000 (an inquest into a death in 1995 had just closed in February 2011). Most cases concerned the use of lethal force by the security forces and some concerned killings attributed to paramilitary forces. (d)     Subsequent pre-inquest procedures 42.     In response to judgments of this Court (including the above-cited McKerr and Hugh Jordan cases), decisions not to prosecute became amenable to challenge by way of judicial review. The applicants requested reasons for the decision not to prosecute in April 1993. On 25 July 2011 the Acting Deputy DPP provided the following reasons for the 1993 decision not to prosecute: “Having carefully considered all the evidence and information it was concluded that the Test for Prosecution was not met in respect of any soldier for any offence relating to the deaths of Desmond Grew and Martin McCaughey. All soldiers had raised the defence of self-defence in opening fire. As you will be aware, where the defence of self-defence is raised the burden of negativing the defence rests on the prosecution and it is for the prosecution to prove to the very high standard required in a criminal trial that the person was not acting in self-defence. It was concluded that the available evidence was not sufficient to do so.” 43.     He could not confirm whether the next-of-kin had been informed of the DPP’s earlier decision not to prosecute but, at the time, the practice was that the police would inform relevant persons of a DPP decision. He confirmed that his office had directed that a further report be submitted by the coroner on any relevant matters which might arise at the inquest. 44.     At a preliminary hearing on 17 October 2011, the coroner determined that the inquest would take place in March 2012. He issued directions for the service of the parties’ evidence including ordering the MOD to serve its evidence by 23 December 2011. The coroner selected the jury asking each to notify him if they had any reason to believe they would not be able to consider the evidence impartially. 5.     Civil proceedings for damages 45.     On 11 January 2012 the applicants issued civil proceedings for damages as regards the shootings. That action was timed to begin within three years of the disclosure to the applicants of ballistic and forensic evidence which they considered as supportive of their allegation that the use of lethal force had not been absolutely necessary and that the operation had not been planned so as to minimise recourse to lethal force. 6.     Judicial review involving the HET 46.     On 6 March 2012 the first applicant began judicial review proceedings about the failure by the HET to disclose relevant documents to the coroner disputing, inter alia , the HET’s independence from the military. The HET then issued a preliminary review of the investigation. It found that the deceased were about to embark on a planned provisional IRA operation, it approved the scene examination and the later interviewing of the soldiers and it found the latter to be consistent with the former. Soldier A had been interviewed but he essentially endorsed his earlier statement. On 19 July 2012 the HET indicated that the final report was pending. 7.     The inquest and intervening judicial review actions 47.     The inquest opened on 12 March 2012 when the applicants were informed that the HET had deferred its investigation pending the inquest. The inquest lasted twenty-seven days, ending on 2 May 2012. The hearing was public and the applicants were legally represented by counsel and a solicitor. 48.     Oral evidence was heard from twenty-three witnesses including certain RUC and military witnesses involved in matters of training, planning, command, control and supervision relevant to the mission and from RUC officers concerning the post-mission investigation. Three of the four soldiers (A, C and D) who had opened fire gave evidence. Soldier B refused to travel from the Middle East: his statement prepared in 1990 for the police investigation was read to the jury. Expert evidence was heard as to the post-incident investigation. Witnesses were cross-examined thoroughly by the applicants. (a)     Inquest: the soldiers’ involvement in other lethal-force incidents 49.     In October 2011 the applicants had requested the coroner to obtain information about the involvement of Soldiers A-H in other lethal-force incidents in Northern Ireland. 50.     At the preliminary hearing of 17 October 2011, it appears the MOD agreed to ask Soldiers A-H about their involvement in other such incidents. 51.     Further statements from Soldiers A, C, D, E and G-L were served on the applicants from 2 February to 5 March 2012. Since most of those statements mentioned involvement in other lethal-force incidents, on 16   February 2012 the applicants requested this information from the coroner. The coroner obtained the parties’ written and oral observations and, on 1 March 2012, he obtained the soldiers’ personnel files as well as MOD information about their participation in other lethal-force incidents. On 8   March 2012 he ruled against the applicants, except in the case of one incident involving Soldier A. A statement from Soldier A as regards that incident was provided on 8 March 2012 as was, on application, further information about that other shooting. On 12 March 2012 the High Court (Weatherup J) refused leave to apply for judicial review of the coroner’s ruling of 8 March. It also indicated that, since the inquest had begun after years of waiting, only exceptional circumstances could justify interrupting it and there was nothing exceptional about the application warranting leave at that point.   Further to a question to Soldier J about his involvement in other lethal incidents, on 15 March 2012 the coroner ruled out any further questions about the soldiers’ involvement in other lethal-force incidents and he directed the removal of references to such incidents from their statements. 52.     On 23 March 2012 the coroner excluded reference to the material about Soldier A’s involvement in two other lethal-force incidents and the first applicant applied for leave to bring judicial review proceedings in respect of that exclusion. In the meantime, Soldier A gave evidence at the inquest excluding any reference to his involvement in other lethal-force incidents: the coroner undertook (and the MOD agreed) that Soldier A could be recalled should the result of the pending judicial review action be in the applicants’ favour. On finishing his evidence, the coroner reminded Soldier   A that he might be recalled and the latter confirmed that he would be available. On 28 March 2012 the High Court found in favour of the applicants as regards one of the other lethal-force incidents concerning Soldier A. He remained available and could be questioned at the inquest the following day so that any disruption of the inquest would be justified, the issue being so “fundamental” to the character of the inquest as to amount to an exceptional case where judicial review could intervene prior to the conclusion of the inquest. 53.     On 29 March 2012 the applicants raised Soldier A’s recall with the coroner: the MOD said he would be available, after his holiday, for the week commencing 9 April 2012. On 2 April 2012 the MOD advised the coroner that Soldier A was out of the jurisdiction and, apart from a holiday in the near future, no difficulty was raised as to his attendance. Soldier   A’s attendance was revisited at length by the coroner on 4 April 2012: Soldier   A would have separate legal representation and the future inquest hearing dates were fixed around juror commitment and Soldier A’s holiday plans (by then announced). On 6 April 2012 the coroner directed that Soldier   A make himself available to the inquest on 11 April 2012. 54.     On 11 April 2012 Soldier A did not appear: his solicitors sent an e ‑ mail to the effect that he was, in fact, beginning three weeks’ holiday that day, that he would attend thereafter but that he wished to take legal advice beforehand. On 12 April 2012 submissions were heard on this issue. In the meantime and subject to his later attending, documents concerning Soldier   A’s involvement in other lethal incidents were read to the jury. On 13 April 2012 the coroner asked the MOD to address conflicting information about Soldier A’s availability. On 16 and 18 April 2012 the applicants requested the coroner to obtain a subpoena. Soldier A’s solicitors said they had no instructions but were forwarding correspondence to him. Having invited, received and considered further submissions from the applicants as regards the subpoena request, on 23 April 2012 the coroner ruled that he would conclude the inquest without Soldier A’s attendance since there was more value in completing the inquest than in speculatively trying to seek his attendance on the basis of “some open-ended review of his availability”. He directed the jury as regards Soldier A’s absence. (b)     Inquest: question from the jury 55.     During their deliberations, the jury sent a question to the coroner asking if a shot fired into a corpse could legally be defined as excessive force. This concerned the additional two shots directed at Mr Grew while he was on the ground: the pathologists had not agreed on whether he was already dead when those shots were fired. The coroner indicated that, strictly speaking, the interest of the inquest evaporated once the person was dead. The applicants unsuccessfully challenged this direction as too narrow since, notably, this incident was pertinent to the individual soldier’s conduct and as to “how” the deceased died. (c)     Inquest: discharge of a juror 56.     Between 20 March and 26 April 2012 a number of applications were made to the coroner about a juror who had allegedly fallen asleep on certain occasions and acted in a manner hostile to the next-of-kin. The coroner rejected the applicants’ requests to discharge the juror, indicating that he would keep the juror under scrutiny and the matter under review. Further to the same juror allegedly spitting in the street near family members of one of the deceased, the coroner refused a further application to discharge the juror on 27 April 2012 but he warned the jury twice about their joint responsibility for the integrity of the process, indicating on the second occasion that he should be informed if any juror had any concern about bias on the part of a fellow juror. No complaint was made. Throughout the inquest, the coroner emphasised the need for the jury to rely only on the evidence and to consider it impartially. In the final days and in response to the applicants’ request, he again emphasised that any concern of a juror about the jury or another juror should be brought to his attention. No jury comment was received. 57.     On 27 April 2012 the High Court (Stephens J) refused leave to apply for judicial review of this last decision of the coroner. There was no need to review the coroner’s factual assessments. Even if the High Court was wrong in that analysis, exceptional circumstances would be required to postpone the inquest after years of waiting and the removal of one juror at that point would present more difficulties than could be justified (especially as the jury had begun to deliberate). In any event, there would be a remedy available to the applicants if the jury decision went against their interests. (d)     Inquest: the jury verdict 58.     At the conclusion of the evidence, the coroner obtained the parties’ written and oral submissions and then fixed the questions for the jury to answer with its verdict. The applicants, the PSNI and the MOD made closing submissions to the jury on those questions, the applicants notably suggesting that the questions did not reflect the correct absolute-necessity test and did not allow the jury to reach a verdict capable of determining whether the force used was justified. The coroner summed up to the jury for approximately four hours. 59.     On 2 May 2012 the jury rendered its verdict to the effect that the deceased died of multiple injuries and multiple high-velocity bullet wounds. 60.     The jury considered that the purpose of the operation was to continue surveillance, to arrest anyone involved in terrorist activity and to place a camera in the area of the shed. The soldiers opened fire and shot the deceased in the belief that their position was compromised and that their lives were in danger as, possibly alerted to the soldiers’ radio “tones”, the deceased were approaching the soldiers with their guns at the ready. The soldiers continued firing believing that their own rounds were incoming fire. Soldier A opened fire (believing that their position had been compromised and their lives were in danger) and Soldiers B, C and D followed and continued firing until they believed the threat was neutralised, in which circumstances the jury believed the soldiers had used reasonable force. Soldier D fired two bullets at close quarters into Mr Grew on the ground as he perceived Mr Grew as a threat and Soldier D’s reaction was reasonable. As to whether the jury considered there was another reasonable course of action, the jury was not “unanimous on the balance of probabilities” as to whether there was an opportunity to arrest prior to the soldiers feeling compromised. In answer, therefore, to the question about whether the operation was conducted in such a way as to minimise to the greatest extent possible any recourse to lethal force, the jury was not “unanimous in regard to the possibility of an arrest option”. 61.     As to whether any aspect of the training of, or planning by, any soldier could account for the deaths, the jury found that the soldiers fired, in accordance with their training, at the “central mass” and continued to do so until the threat was neutralised but that, otherwise, there was “insufficient evidence of planning and intelligence available to give further findings”. Other than noting that Desmond Grew received two bullets on the ground near the shed, it was “not possible to reach any further conclusions concerning the force used against Mr Grew”. 62.     As to whether the operation was planned, controlled and supervised by the RUC and the military so as to minimise to the greatest extent possible any recourse to lethal force, the jury responded as follows: “Planning – In planning the operation, TCG tasked a specialist military unit as the most appropriate unit to minimise danger to RUC members and soldiers involved in the surveillance operation and the placing of a camera. – The placing of the camera was in itself planned to minimise the risk to those on surveillance. – Given the level of risk involved in the surveillance operation, the specialist military unit were commissioned due to their particular training and firepower which was superior to that of the RUCs. – There was no definitive information or intelligence available to minimise any recourse to lethal force. Control - Each individual involved had specific roles and there was no ambiguity — clear lines of command. - Clear roles for everyone involved and TCG were the only ones who could call off the operation. Supervision - Soldier H had overall control of the operation but Soldier A was the team leader who was in command of the soldiers on the ground and therefore in the best position to make decisions and minimise to the greatest extent possible any recourse to lethal force.” 63.     The jury highlighted, as important contributing factors, the history of incidents directed towards security forces in the area, the nature of terrorism in Northern Ireland at the time, as well as the heightened state of the minds of the soldiers involved in the operation. 8.     Judicial review proceedings after the inquest 64.     On 29 June 2012 the first applicant requested leave to apply for judicial review of the inquest requesting, inter alia , the quashing of the verdict and a new inquest on the basis that the inquest was not compliant with the procedural requirements of Article 2 of the Convention. 65.     She contested the coroner’s decisions not to admit probative material concerning the involvement of the soldiers in other lethal-force incidents in Northern Ireland including his refusal to disclose relevant material, his decision not to allow the next-of-kin to question military witnesses about such incidents and his ruling that references to such incidents be edited from the soldiers’ statements. These decisions deprived the applicants of effective and full participation in the inquest; meant that there was insufficient public scrutiny of the inquest; and deprived the jury of probative evidence in relation to whether the specialist military unit was involved in a shoot-to-kill policy, whether that unit was therefore more likely to have recourse to unjustified lethal or excessive force and whether the individual soldier’s use of lethal force was justified in the circumstances. 66.     She also argued that the coroner failed to take adequate steps to ensure Soldier A’s attendance despite the prior High Court judgment and that this deficiency had had the same negative consequences for the applicants’ participation in the inquest, public scrutiny of the inquest and the availability of probative material for the jury. She maintained that the questions put by the coroner to the jury failed to ensure that the jury could properly address “how” and “in what circumstances” the deceased came by their deaths. She also argued that the coroner misdirected the jury on the soldiers’ “state of belief” when they opened fire and continued to fire, that he failed to direct them to consider the “absolute necessity” of the use of the force used and that he failed to direct the jury properly in response to its question about shooting at a corpse. She claimed that the coroner failed to correct errors in the parties’ closing submissions to the jury. Finally, she challenged the coroner’s refusal to discharge the juror hostile to the next-of-kin so that the jury was neither fair, impartial nor independent. 67.     Those proceedings have not yet been heard by the High Court. B.     Relevant domestic law and practice 1.     Inquests – Legislation 68.     Coronial law in Northern Ireland was consolidated in the Coroners Act (Northern Ireland) 1959 (“the 1959 Act”) and supplemented by the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”). 69.     Section 7 of this Act imposes a duty on certain persons, who have reason to believe that the deceased person died from unnatural causes, to notify the relevant coroner immediately. 70.     Section 8 imposes the following duty on the police: “Whenever a dead body is found, or an unexpected or unexplained death, or a death attended by suspicious circumstances, occurs, the district inspector within whose district the body is found, or the death occurs, shall give or cause to be given immediate notice in writing thereof to the coroner within whose district the body is found or the death occurs, together with such information also in writing as he is able to obtain concerning the finding of the body or concerning the death.” 71.     Section 31(1) of the 1959 Act provides: “Where all members of the jury at an inquest are agreed they shall give, in the form prescribed by rules ..., their verdict setting forth ... who the deceased person was and how, when and where he came to his death.” 72.     Rule 15 of the 1963 Rules provides that the proceedings and evidence at an inquest shall be directed solely to ascertaining who the deceased was; how, when and where the deceased came by his death; and the particulars for the time being required by the laws concerning births and deaths registration. However, Rule 16 provides that: “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 [Rule 15].” 73.     Rule 22(1) provides: “After hearing the evidence the coroner, or, where the inquest is held by a coroner with a jury, the jury, after hearing the summing up of the coroner shall give a verdict in writing, which verdict shall, so far as such particulars have been proved, be confined to a statement of who the deceased was, and how, when and where he died.” 74.     Rule 23(1) provides: “Any verdict given in pursuance of Rule 22 shall be recorded in the form set out in the Third Schedule.” 75.     The Third Schedule to the 1963 Rules provided a standard form of verdict. The cause of death was to be stated and was defined as “the immediate cause of death and the morbid conditions (if any) giving rise to the immediate cause of death”. The form stated that one of the following forms of words should be used to express the verdict of the jury or the conclusion of the coroner as to the death: “died from natural causes; died as the result of an accident/misadventure; died by his own act ...; open verdict (to be used where none of the above forms of verdict is applicable)”. Since 1980 a form is provided for inclusion of the verdict of the inquest jury or the conclusions of the coroner under the title “Findings”. 76.     Section 35(3) of the Justice (Northern Ireland) Act 2002 (replacing section 6(2) of the Prosecution of Offences (Northern Ireland) Order 1972) provides: “Where the circumstances of any death which has been, or is being, investigated by a coroner appear to the coroner to disclose that an offence may have been committed against the law of Northern Ireland or the law of any other country or territory, the coroner must as soon as practicable send to the Director [of Public Prosecutions] a written report of the circumstances.” 2.     Inquests – relevant case-law 77.     In R   v. Coroner for North Humberside and Scunthorpe, ex parte Jamieson ([1995] QB 1, concerning England and Wales), the Court of Appeal ruled that “how” meant “by what means”, a question directed to how the deceased came by his death. While a verdict could properly incorporate a brief and neutral statement, the verdict was to be factual, expressing no judgment or opinion and it was not the jury’s function to prepare detailed factual statements. 78.     In the case of R   v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51), the House of Lords ruled on the requirements of an Article 2 compliant investigation. In R   (Middleton) ν. West Somerset Coroner ([2004] 2 AC 182), the House of Lords reviewed the scope of the “Jamieson” inquest and found that, since a Jamieson inquest could not examine whether the conduct of State agents might reasonably have prevented death, it was incompatible with Article 2. To comply with that Article, the inquest had to consider “by what means” and “in what circumstances” the deceased came by his death, so that the inquest verdict would be broader in scope 79.     On 11 March 2004 the House of Lords found that there was no obligation to conduct an inquiry compatible with Article 2 when the death had occurred before the HRA came into force ( In re McKerr ([2004] 1   WLR 807). 80.     On 28 March 2007 the House of Lords delivered its judgment in Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14. It relied on the McKerr judgment to the effect that the HRA did not apply to a pre-HRA death or, therefore, to the investigation of any such death. However, section   8 of the 1959 Act plainly required the police to disclose to the coroner such information about the deaths as the police were then or thereafter able to obtain, subject to any relevant privilege or immunity. 81.     In a later judicial review action, Hugh Jordan successfully contested a PSNI refusal to disclose to him all documents disclosed by it to the coroner, except those to which valid professional privilege or immunity attached ( In re Jordan’s Application [2008] NIQB 148). The High Court’s decision was informed by: “... the confusion that has been created by the fragmented production of documents over the years. There has been duplication of some documents and a failure to produce certain documents on some occasions and then their production on other occasions. It has been acknowledged that the level of redactions have on occasions been excessive.” Accordingly, the High Court (under section 8 of the 1959 Act) ordered the PSNI, inter alia , to make a full and indexed disclosure to Hugh Jordan. 82.     In 2008 alone there were six judicial review applications as regards Pearse Jordan’s inquest. In 2009 the Court of Appeal made the following comment about the delay in holding the inquest into Pearse Jordan’s death ( Hugh Jordan v. the Senior Coroner [2009] NICA 64): “(3)     ... This inquest has taken an extremely long time to reach this point and has been dogged by procedural wrangling, frequent judicial review applications and hearings in the House of Lords and Strasbourg all of which have contributed to the length and complexity of the inquest. (4)     The current state of coronial law is extremely unsatisfactory. It is developing by means of piecemeal incremental case law. It is marked by an absence of clearly drafted and easily enforceable procedural rules. Its complexity, confusion and inadequacies make the function of a coroner extremely difficult and is called on to apply case law which does not always speak with one voice or consistently. One must sympathise with any coroner called on to deal with a contentious inquest of this nature which has become by its