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FOURTH
SECTION
CASE OF REAVEY v. THE UNITED KINGDOM
(Application
no. 34640/04)
JUDGMENT
STRASBOURG
27
November 2007
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 Reavey v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G.
Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J.
Šikuta,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34640/04) 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 an Irish
national, Ms Sarah Reavey (“the applicant”), on 10
September 2004.
- The
applicant was represented by Madden & Finucane, solicitors
practising in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger of
the Foreign and Commonwealth Office, London.
- The
applicant alleged that there had been no adequate investigation into
allegations of collusion and/or involvement by security forces in the
shooting of her three sons, nor any effective remedy for the same.
She invoked Articles 2 and 13 of the Convention.
- By
a decision of 6 March 2007 the Court declared the application
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1), to which they each responded with further written
comments (Rule 59 § 1). The Chamber decided, after consulting
the parties, that no hearing on the merits was required (Rule 59 §
3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1923 and lives in Whitecross, County Armagh.
She was the mother of John Reavey, Brian Reavey and Anthony Reavey.
A. The attack on the Reavey home and the initial
investigation
- On
the evening of 4 January 1976, John Reavey, Brian Reavey and Anthony
Reavey, sons of the applicant, were at home watching television.
Between 6.05-6.10 p.m., three gunmen entered the house and shot all
three brothers. Brian was shot three times in the back and once in
the legs; John was hit by 14-16 9mm bullets in the neck and body: the
autopsy report concluded that death would have been rapid in both
cases. Anthony was hit six times in the legs. When the gunmen had
gone, Anthony made his way to a neighbour's house to give the alarm.
He later died of a brain haemorrhage in hospital on 30 January 1976,
the autopsy report concluding that the wounds that he had received
had played no part in his death.
- On
the same night, three other Catholics, Barry O'Dowd, Declan O'Dowd
and Joseph O'Dowd were shot and killed in County Down, about twenty
minutes after the attack on the Reaveys (see application
no. 34622/04).
- Shortly
after the events, police arrived at the scene and secured it. An
ambulance removed the bodies.
- Detectives
arrived at the scene at 7.25 pm.
- At
7.40 pm officers went to a vehicle on fire and on its being
extinguished took the remains to a garage for inspection. Scene of
crime officers examined the scene, recovering a number of spent
cartridge cases and bullet heads and one live round, which were sent
for examination.
- Forensic
examination established that four weapons had been used in the
attack, three of which had been used in previous incidents. Police
believed the murders were carried out by the Ulster Volunteer Force
(“UVF”), a proscribed loyalist paramilitary organisation.
- House
to house inquiries were carried out in the area and along the
suspected escape route, and liaison made with officers involved in
other killings of Catholics in the area. Nothing of evidential value
was obtained. A number of known loyalist activists were arrested and
interviewed about the murders but no admissions were made. The police
sent a report to the DPP on 4 March 1976. As no person had been
identified as a perpetrator no-one was charged.
- Inquests
were held on 28 January 1977. Open verdicts were returned.
B. The investigations concerning McCaughey and Weir
- The
investigation did not close and became active again in 1978, when a
Catholic priest Father Hugh Murphy was abducted by loyalist
paramilitaries intending to use him as a hostage vis-à-vis
the IRA. The police arrested a reserve police constable, William
McCaughey, who, in the course of questioning, revealed his part in
the abduction of the priest and in a variety of other loyalist
paramilitary incidents. McCaughey made allegations that a police
officer was involved in the Reavey murders. This officer was arrested
and questioned. He was charged with serious offences, resigned from
the police and was subsequently convicted.
- McCaughey's
revelations gave rise to investigations in eleven specific cases,
some of which were linked in terms of the identities of those
involved, the modus operandi or by virtue of the ballistic
examinations of weapons used. Nine suspects were arrested in total,
including five police officers and all were eventually charged with
offences.
- One
of those implicated was a police officer John Weir who was named as
having been involved in the murder of a shopkeeper called Strathearn
in Ahoghill in April 1977: he was convicted for that murder in June
1980 and sentenced to life imprisonment. The Government stated that
both McCaughey and Weir refused to name the two loyalist
paramilitaries also involved with them in the murder unless they
received immunity from prosecution. The police and prosecuting
authority took the decision prior to the trial not to enter into any
process of bargaining with Weir and McCaughey. While both were
approached by the police after their convictions to see if at that
stage they would give evidence against the loyalist paramilitaries,
each again refused to do so unless there was something in it for
themselves. The Government stated that during the period in which
Weir was detained he was interviewed on a large number of occasions.
At no time did he implicate himself or others in any offence other
than the Strathearn murder.
- Apparently
around this time, the applicant stated that Chief Superintendent
Gerry McCann of the Royal Ulster Constabulary ("RUC")
initiated a meeting with a member of the Reavey family and told him
that he believed that two McClures (one of whom was Laurence McClure,
a former Reserve Constable in the RUC) and James Mitchell, also a
former Reserve Constable, were involved in the attacks on the Reaveys
as well as the attacks on Donnelly's Bar (19 December 1975- see
Brecknell v. the United Kingdom, no. 32457/04 ) and the Rock
Bar (5 June 1976: see McGrath v. the United Kingdom, no.
34651/04). He also named Robert McConnell (a former part time member
of the Ulster Defence Regiment, the “UDR”) as the gunman
who entered the house first. He said that one of the men was going to
turn Queen's evidence if convicted of the Rock Bar attack, an
apparent reference to Laurence McClure.
C. The Weir allegations and the response of the
authorities
- On
1 February 1993 John Weir was released from prison on licence. In
January 1999, he made a statement to a journalist alleging RUC and
UDR collusion with loyalist paramilitaries from the Portadown area in
the mid-1970s. This statement was published in the Sunday Times
newspaper in March 1999. It was obtained by the Patrick Finucane
Centre, a human rights non-governmental organisation in Derry (“the
Centre”).
- John
Weir's statement made detailed allegations about security force
collusion with loyalist paramilitaries in a series of incidents. He
alleged inter alia that RUC Reserve Constable Laurence McClure
had told him that the murder of the Reavey family members was carried
out by Robert McConnell, a member of the UDR, Laurence McClure,
Johnny Mitchell, another Reserve Constable in the RUC and McClure's
brother who was not a member of the security forces. The statement
also made links between this incident and other attacks allegedly
carried out by members of the security forces, both RUC and UDR, and
loyalist paramilitaries. This group used the farmhouse in Glennane
owned by James Mitchell, a RUC reservist, as a base from which to
carry out attacks on Catholics and nationalists. Other attacks
allegedly included the murder of Colm McCartney and Sean Farmer at a
bogus vehicle checkpoint in August 1975 (see application no.
34575/04); the attack on Donnelly's Bar in which Trevor Brecknell,
Michael Donnelly and Patrick Donnelly were killed (see application
no. 32457/04); the murder of Joseph, Barry and Declan O'Dowd and
wounding of Barney O'Dowd (see application no. 34622/04); and the
attack on the Rock Bar in which Michael McGrath was seriously injured
(see application no. 34651/04). Weir also linked these attacks to the
Dublin and Monaghan bombings in which 33 people were killed in the
Republic of Ireland.
- On
or about 10 June 1999, RTE, an Irish television channel, broadcast a
television programme that contained allegations of security force
involvement in a number of deaths, including that of Trevor
Brecknell. Weir made allegations on that programme that members of
the RUC and UDR were directly involved in the attack on Donnelly's
Bar. A BBC Spotlight programme produced a similar documentary dealing
with these allegations.
- These
allegations attracted considerable attention on both sides of the
Irish border and became the subject of police investigation in both
jurisdictions. The Government stated that the police investigation in
Northern Ireland was focussed on determining whether Weir's
allegations should be assessed as sufficiently credible to require a
full investigation. They obtained from the journalist an edited
transcript of the interview with Weir. While his whereabouts were
unknown to the RUC, Weir met with senior Irish police officers at the
Irish Embassy on 15 April 1999. A copy of his statement was provided
by the Garda to the RUC, along with a further statement made by Weir
to another journalist dated 3 February 1999. The police analysed the
available materials and sought to identify the personalities to be
interviewed. It became apparent that some had died and that others,
living abroad, could not be traced. A series of seven interviews were
conducted, under cautions, between July and December 2001, of those
individuals central to Weir's account who could be traced. No charges
were preferred. The interviews followed the format of Weir's
allegations being put to the interviewee for his or her response. The
predominant response was denial of any involvement and claims that
Weir had been untruthful. No admissions were made by any interviewee.
Interviews were also conducted with less central personalities and
with police officers involved in interviewing Weir in 1978. The
latter stated that Weir had not mentioned the matters now being
alleged. Amongst those interviewed by the police in the course of the
preliminary investigation of Weir's allegations, one person was
questioned about the Reavey murders. He denied any involvement and
made no admissions.
- Meetings
were held regularly with RUC counterparts in the Republic of Ireland.
The RUC co-operated also with the judicial inquiry established in the
Republic of Ireland into the Dublin and Monaghan bombings (see the
description of the inquiry in the Brecknell case referred to
above). Amongst matters about which the RUC team provided information
to the inquiry was ballistics information which linked some of the
weapons used to more than one incident. In February 2000 a
substantial report was compiled by the RUC for the Garda dealing with
Weir's allegations. It profiled Weir and dealt inter alia with
a description of the 1978 investigation into McCaughey, Weir and
others. It concluded that the investigation would continue but that
his credibility was in doubt. According to the Government, despite
inquiries being conducted, Weir's whereabouts could not be traced.
This report was not disclosed as the investigation was continuing. An
internal RUC report dated 27 February 2001 concluded that it would be
necessary to interview Weir before any view could be finalised in
respect of the credibility of his allegations: such interview was not
possible as his whereabouts were not known. The report noted the
absence of any previous mention of the allegations before 1999 and
that much of what he said was hearsay and speculation. Enquiries made
of the British Embassy in Nigeria (where he had a known address) and
the criminal intelligence service and others failed to locate Weir.
Contact was made with the Garda and the secretariat of the Inquiry
into the Dublin and Monaghan bombings without positive result.
- The
Serious Crime Review Team ("SCRT") was established in March
2004, with responsibilities including the review of all historical
murders by way of case assessment for evidential and investigative
opportunities. A preliminary case assessment was carried out by a
detective chief inspector, who audited all known information and
documentation.
- In
light of the preliminary assessment, the case was referred to the
Historical Enquiry Team (“HET”). On 28 April 2006, a
Senior Investigating Officer reported on the further review; a number
of potential lines of inquiry were identified and recommendations
made, including that the HET should extensively interview Weir. This
recommendation was approved. The HET director of Investigations,
Detective Chief Superintendent James of the London Metropolitan
Police Force, took over personal supervision of the investigation
which has progressed through the first three of five stages of the
HET process (collection of all relevant material; assessment of the
investigations to date; review of evidence, with intelligence and
open and non-police sources, together with a meeting with the
families of the victims of the attack). As a number of investigative
opportunities were identified and to be followed up, the case was to
continue to be processed by HET, which had been put in touch with
Weir by the Centre. The Government submitted that if any evidence of
police involvement in the murders was found, the Office of the Police
Ombudsman for Northern Ireland would then become involved. The
Government have provided recent information that Weir finally agreed
to meet with the HET in Dublin; he refused, however, to make a
written statement or to give evidence in court.
- There
has been contact between the police and family members, their
solicitors or the Centre. In particular, there were meetings on 21
January 2000 with Chief Superintendent McCann; on 19 December 2001
with Detective Inspector Aiken and in November 2002 with Detective
Inspector Williamson; and in June and August 2004 with the Chief
Constable; members of HET met with families or their representatives
on 5 April and 3 May 2006; and there has also been extensive
correspondence with the families or their representatives.
D. Application for judicial review concerning the
inadequacy of the investigation
See
Brecknell, cited above (§§ 39-41).
E. Reports of the Independent Commissions of Inquiry
(Republic of Ireland)
See
Brecknell, cited above (§§ 42-49).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
- The
applicant complained that the United Kingdom had failed to provide an
effective official investigation into the circumstances of her sons'
death after allegations were made in 1999 by John Weir as to RUC
involvement, invoking Article 2 of the Convention which provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”.
A. The parties' submissions
- The
parties' submissions repeat those made in the Brecknell case
(cited above, §§ 54-59, 60-64).
B. The Court's assessment
- The
Court refers to its statement of principles and analysis as set out
in Brecknell (cited above, §§ 65-81). For the same
reasons it concludes that the investigative response to Weir's
allegations lacked the requisite independence in its early stages
when under the control of the RUC. There has been, in that respect
alone, a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In
view of its findings above, the Court finds that it is not necessary
to examine separately the complaint under this Article.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed non-pecuniary damage for the suffering and distress
caused by the State's failure to conduct an effective official
investigation into the circumstances of her sons' deaths.
- The
Government submitted that even if there was a breach of the
procedural obligation it would not be appropriate to apply the same
scale as in cases of procedural breaches in the immediate aftermath
of death. They considered a finding of a violation should be held in
itself to constitute just satisfaction. Alternatively, any award
should be modest.
- The
Court has found that the national authorities failed in their
obligation to provide a properly independent investigative response
in the initial stages following the allegations made by John Weir
concerning the deaths of the applicant's sons. In the circumstances,
it considers that the applicant sustained some non-pecuniary damage
which is not sufficiently compensated by the finding of a violation
of the Convention. Making an assessment on an equitable basis, the
Court awards the sum of EUR 5,000.
B. Costs and expenses
- The
applicant claimed GBP 7,358.97 for solicitors' costs, inclusive of
value added tax (VAT) for this application.
- The
Government submitted that the overall solicitors' charging rate (with
an uplift of 50% for care and conduct) was excessive, and half the
amount was appropriate. The overall hours claimed were also excessive
given that similar issues arose in the four other cases considered at
the same time. They proposed no more than GBP 20,000 for solicitors'
costs in total for all four cases together.
- The
Court recalls that only legal costs and expenses found to have been
actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see,
among other authorities, Nikolova v. Bulgaria [GC], no.
31195/96, 25 March 1999, § 79, and Smith and Grady v. the
United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, §
28, ECHR 2000-IX).
- The
Court has already awarded EUR 29,000 for solicitors' costs in the
Brecknell case (§ 92). Having regard to the fact that
only the initial presentation of facts in this case required separate
treatment from the lead application, it awards the applicant EUR
5,000, which figure is inclusive of VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 2 of the Convention due to the lack of independence of
the RUC during the initial stages of the investigation begun in 1999;
- Holds that it is not necessary to examine
separately the applicant's complaint under Article 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into pounds sterling at the rate applicable
at the date of settlement together with any tax that may be
chargeable;
in respect of
non-pecuniary damage, EUR 5,000 (five thousand euros);
in respect of costs
and expenses, EUR 5,000 (five thousand euros);
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
