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5
September 2011
FOURTH
SECTION
Application no.
23276/09
by Susan ALEXANDER
against the
United Kingdom
lodged on 14 April 2009
STATEMENT OF FACTS
THE FACTS
- The
applicant, Susan Alexander, is a British national who was born in
1960 and lives in Middlesex, the United Kingdom. She is represented
before the Court by Hickman Rose, a firm of solicitors practising in
London.
A. The circumstances of the case
- The
case concerns the shooting by police of the applicant’s son,
Azelle Rodney, in 2005. The facts of the case, as submitted by the
applicant, may be summarised as follows.
1. Background facts
- On
30 April 2005 a number of police officers, acting on intelligence,
began a search for individuals as part of an operation run by the
Metropolitan Police’s Specialist Crime Directorate and SO19
(Special Firearms Officers, now called CO19). The operation included
following a group of men in a car. Mr Rodney was seated in the back
of the car.
- At
some point it was decided that the vehicle should be stopped and the
police officers carried out a “hard stop”. During this
procedure, Mr Rodney was shot by a police officer (“E7”)
and died at the scene. The post-mortem examination revealed a number
of gunshot wounds to the head and neck. A number of weapons were
found in the car.
2. The Independent Police Complaints Commission
(“IPCC”) and the Crown Prosecution Service (“CPS”)
- The
IPCC conducted, pursuant to Section 24(2) of Schedule 3 to the Police
Reform Act 2002, an investigation into whether a criminal offence had
been committed. In December 2005 the IPCC report was referred to the
CPS. Mr Rodney’s family and the police officers in question
were informed. In July 2006 the CPS advised the IPCC that there was
insufficient evidence to bring criminal charges. From this point, the
applicant sought pre-Inquest disclosure from the IPCC. In December
2006 the applicant was supplied with a redacted version of the IPCC
report.
- In
January 2007 the applicant, the Home Secretary and the Treasury
Solicitors corresponded about the redaction of the IPCC report. On
22 February 2007 the IPCC supplied the applicant with a less
redacted version, the report including some “gists”
(summaries) instead of some of the earlier redactions. In July 2007
the IPCC disclosed some redacted investigation material to the
applicant and to the Coroner.
3. Inquest
- On
2 August 2007 the Coroner gave a ruling following a pre-Inquest
hearing on disclosure of documents. The Coroner noted that all
parties agreed that he was obliged to carry out an Inquest, that
Article 2 imposed a duty to investigate a death caused by an agent of
the State and that the Inquest was the forum in which the State
would, in the first instance, seek to comply with its procedural
obligations under Article 2. He referred to the criteria which an
investigation must satisfy set out in Hugh Jordan v. the United
Kingdom (no. 24746/94, ECHR 2001 III), notably that the
investigation had to be effective so that it had to be conducted in a
manner that did not undermine its ability to establish the relevant
facts and, further, that there had to be “a sufficient element
of public scrutiny”. The Coroner considered that those latter
two obligations included the requirement to disclose core documents.
He accepted that the IPCC could not lawfully disclose the redacted or
gisted material (although a small part could be the subject of a
Public Interest Immunity application and that part would be material
which he could review). He also accepted that as a matter of law
“neither the jury as the tribunal of fact, nor I as Coroner,
could hear this evidence at or before any Inquest”. Moreover,
the material was relevant. He stated that there was:
“an irresistible inference that the redacted
material is relevant for the purpose of the Inquest and that it would
be insufficient simply for the jury to rely on the replacement agreed
text for these redacted portions”.
Counsel
for the IPCC and for the Metropolitan Police Service (“MPS”),
who knew its content, were also of the view that the redacted and
gisted material was relevant for the Inquest.
- The
Coroner also rejected the proposal of Counsel for the MPS to appoint
an Assistant Deputy Coroner who would see and determine the relevance
of the undisclosed material. The Coroner was already able to form a
conclusion on its relevance without such an appointment. In any
event, the State’s obligations under Article 2 would not be met
by such an appointment as the jury would still not hear all relevant
evidence and the members of the family would not be able to be
involved to the extent necessary to safeguard their legitimate
interests. Despite these conclusions, the Coroner was obliged to
conduct an Inquest with a jury (section 8 of the Coroner’s Act
1988). He would take no further steps towards holding an Inquest in
order to allow Counsel for the parties to consider the effect of his
rulings.
4. Proposed legislative changes
- By
letter of 14 September 2007 the applicant sent a “letter before
claim” to the Secretary of State for Justice requiring his
immediate intervention to enable a Convention compliant Inquest to
take place and, notably, to legislate to allow the IPCC and/or the
Commissioner of the Police of the Metropolis to disclose to
interested persons and to the Coroner any evidence that had been
secured under an intercept warrant.
- By
letter dated 30 November 2007 the Treasury Solicitors agreed that
legislation was required to deal with the use of sensitive material
in investigations into deaths required by the Convention. While they
were acutely aware of the time which had elapsed, it was vital for
any legislative changes to be formulated clearly. The applicant would
be updated as soon as possible. Since legislation was required and
since proceedings would not therefore assist the applicant, the
Treasury Solicitors requested her to postpone any court action
pending the proposed legislation.
- In
early 2008 the Counter-Terrorism Bill 2008 (“CTB”) was
published. Part 6 of the CTB allowed the Secretary of State to
certify that an Inquest would involve the consideration of material
that should not be made public for certain reasons so that the
Inquest could be held without a jury and be run by a specially
appointed Coroner assisted by a Special Counsel. While the Coroner
and Counsel would see disclosed sensitive material, the next-of-kin
would not. The Regulation of Investigatory Powers Act 2000 (“the
RIPA”) would be amended to allow intercept evidence to be
disclosed in exceptional circumstances.
- On
9 June 2008 the applicant requested a meeting with the Treasury
Solicitors on Part 6 of the CTB. A meeting of various parties with
the Treasury Solicitors took place. Since that meeting did not
discuss her son’s case in any detail, by letter dated 11 June
2008 the applicant requested a further meeting on his case and,
notably, to underline why Part 6 of the CTB would not comply with
Article 2 of the Convention. On 1 July 2008 the Minister of
State of the Home Office wrote to the applicant to the effect that he
considered Part 6 of the CTB to be Convention compliant.
- On
14 October 2008, during its passage before the House of Lords, Part 6
of the CTB was withdrawn (apart from a Clause which proposed to amend
the Inquiries Act 2005 (“the 2005 Act”) and section 18 of
the RIPA, see paragraphs 15 and 36 below). The applicant wrote on the
same day to the Treasury Solicitors seeking urgent legislation to
ensure that an Article 2 compliant Inquest could proceed and
threatening litigation.
- On
28 October 2008 the Treasury Solicitors responded to the applicant
confirming the intention to legislate and that the Secretaries of
State for the Home Department and for Justice considered that Part 6
of the CTB would have permitted Article 2 compliant Inquests to
proceed.
- On
26 November 2008 the Counter-Terrorism Act 2008 (“the CTA”)
received royal assent and section 74 (see paragraph 36 below) entered
into force on 15 February 2009.
- On
14 January 2009 the applicant received an e-mail from the Coroner
Reform Policy Team announcing that the Coroners and Justice Bill 2009
would be published that day and apologising for failing to provide
the applicant with prior consultation. The Bill was published with
provisions (sections 11-13) similar to those withdrawn from the CTB.
- On
15 May 2009 the “secret Inquest” provisions were
withdrawn from the Coroners and Justice Bill 2009. On the same day
the Secretary of State for Justice stated in Parliament that,
where it was not possible to proceed with Inquests under the current
arrangements, the Government would consider establishing an Inquiry
under the 2005 Act to ascertain the circumstances in which a deceased
came by his or her death.
- On
1 June 2009 the applicant wrote to the Treasury Solicitors requesting
information about the application of the 2005 Act to her case within
7 days. Obtaining a response but not confirmation of the holding of
an Inquiry, she wrote on 2 December 2009 and 16 March 2010 requesting
the early establishment of an Inquiry and threatening litigation.
- In
November/December 2009 the Coroners and Justice Act 2009 entered into
force including a provision which allowed for an Inquiry under the
2005 Act to take place instead of an Inquest (paragraphs 37-38
below).
5. The Azelle Rodney Inquiry
- On
30 March 2010 the Government announced its intention to establish an
Inquiry under the 2005 Act into Azelle Rodney’s death, stating:
“It is intended that this inquiry will be chaired
by a retired judge and that, subject to his or her views, it will
determine the matters which an Article 2 compliant inquest would have
determined had it been able to take place. These are: how, when and
where Mr. Rodney died, and the broad circumstances which led to his
death.
The inquest into the death has been adjourned by the
north London coroner since August 2007. The coroner and, most
importantly, the bereaved relatives of Mr. Rodney have been given
advance notice of this decision.
During debate on the Coroners and Justice Bill, I said
that any inquiry established because an inquest cannot be held would
be subject to a protocol between Ministers and the senior judiciary.
This protocol is intended to cover the procedure from the point the
inquest cannot continue until when the inquiry is established.
I have been working with colleagues across Government on
the terms of the protocol but it has raised some complex issues and
is not yet ready for use. As the inquest into Mr. Rodney’s
death is already adjourned and cannot continue, I have decided that
an inquiry should be established to avoid further delay for Mr.
Rodney’s family. A further announcement on the inquiry chair
and its terms of reference will be made as soon as possible.”
- By
letters of 29 April and 20 May 2010 to the Treasury Solicitors, the
applicant pursued the early establishment of the Inquiry. By letter
dated 27 May 2010 the Treasury Solicitors responded, recognising the
“unusual and considerable” delay and answering the
applicant’s questions in detail.
- On
10 June 2010 the Secretary of State for Justice announced the
establishment of the Azelle Rodney Inquiry and the appointment of the
Chairman. The terms of reference of the Inquiry were to inquire into
“how, where and in what circumstances”, the applicant’s
son came by his death and to make any such appropriate
recommendations.
- The
Chairman designated the applicant, E7 (the police officer alleged to
have shot Mr Rodney) and the Commissioner of Police of the Metropolis
as core participants (paragraph 34 below).
- In
July 2010 the Chairman adopted a Protocol setting out the procedure
which the Chairman would follow when a disclosure application was
made, the Chairman reserving his ability to vary the procedure if
necessary in the interests of fairness and to avoid unnecessary
costs. That Protocol reads, in so far as relevant, as follows:
“4. On receipt of an application the Chairman will
ask Counsel to the Inquiry to advise what, if any, disclosure should
be made of the potentially restricted evidence to any other person
for the purpose of determining the application. The substance of that
advice will then be given to the person producing or providing the
evidence and any other person making the relevant application, for
their comments in writing. Exceptionally he may hear oral
submissions.
5. The Chairman will then decide what, if any,
disclosure to make of the potentially restricted evidence to any
other person for the purpose of determining the application, and
shall make that disclosure subject to the obligation of confidence
referred to in paragraph 12(5) of the Rules.
6. Counsel to the Inquiry will then be asked to provide
advice on the application, the substance of which will be sent to the
applicant and, insofar as is practicable, to any other person
interested in the outcome of the application.
7. The applicant and any other person interested in the
outcome may then submit written comments on Counsel’s advice.
8. The Chairman will decide whether to hold an oral
hearing and, if so, will give directions for its conduct. If he does
not decide to hold such a hearing he will determine the application
and inform the parties of the outcome.
9. The time within which any comments permitted to be
made by this Protocol are to be delivered will be set from time to
time by the Chairman.”
- In
August 2010 the Chairman adopted a Protocol on costs (applications
for and grants of legal representation at public expense) and an
anonymity Protocol (applications for and grants of anonymity), the
Chairman reserving the ability to vary those procedures if necessary
in the interests of fairness and to avoid unnecessary costs.
- The
Inquiry opened in public on 6 October 2010. Various submissions were
made including on behalf of the applicant and, notably, concerning
the delay to date and her wish for a public and transparent Inquiry.
No rulings were made and a directions hearing was scheduled for oral
submissions on the terms of an undertaking from the Attorney General.
On 4 November 2010 those oral submissions were made.
- On
4 April 2011 the Attorney General delivered an undertaking in respect
of any person who would provide evidence to the Inquiry:
“Evidence” includes oral evidence, any
written statement made by that person preparatory to giving evidence
to the Inquiry or during the course of his or her testimony to the
Inquiry, and any document or information produced to the Inquiry
solely by that person.
No evidence a person may give before the Inquiry, nor
any evidence as defined above, will be used in evidence against that
person in any criminal proceedings, save that this undertaking does
not apply to:
a) A prosecution where the person is charged with having
given false evidence in the course of this Inquiry or having
conspired with or procured others to do so; or
b) Proceedings where the person is charged with any
offence under section 35 of the Inquiries Act 2005 or having
conspired with or procured others to commit such an offence.
It is further undertaken that in any criminal
proceedings brought against any person who provides evidence, as
defined above, to the Inquiry, no reliance will be placed on evidence
which is obtained during an investigation as a result of the
provision by that person of evidence to the Inquiry. The undertaking
does not preclude the use of information and/or evidence identified
independently of the evidence provided by that person to the
Inquiry.”
- In
June 2011 guidelines were adopted on the burden and standard of proof
that would be adopted, the Chairman noting that the Inquiry
approached its task on an inquisitorial rather than adversarial
basis, that it had adopted no rigid rules of evidence and that there
was consequently no burden of proof, or of disproof, on any
interested party or witness nor was there a standard of proof which
evidence had to attain before it could be considered an established
fact. An entry on the internet site of the Azelle Rodney Inquiry
dated 6 June 2011 confirmed that the Inquiry was in the process of
contacting a large number of potential witnesses
- The
date for the substantive hearing is yet to be confirmed. The internet
site also indicates that a number of the parties (including the IPCC
and the MPS) have served a large volume of materials on the Inquiry
which have to be evaluated and assessed so that oral hearings were
not expected to begin before November 2011.
B. Relevant domestic law and practice
1. The Human Rights Act 1998 (“HRA”)
- Article
6 of the HRA is entitled “Acts of public authorities” and
it provides that it is unlawful for a public authority to act in a
way which is incompatible with a Convention right. Section 6(6)
provides that, while “an act” can include a failure to
act, it does not include a failure to introduce in, or lay before,
Parliament a proposal for legislation or make any primary legislation
or remedial order.”
2. The Police Reform Act 2002 (“the 2002 Act”)
- Section
24 of Schedule 3 to the 2002 Act is entitled “Action by the
appropriate authority in response to an investigation report”
and section 24(2) reads as follows:
“(2) On receipt of the [investigation] report or
(as the case may be) of the copy, the appropriate authority–
(a) shall determine whether the report indicates that a
criminal offence may have been committed by a person whose conduct
was the subject-matter of the investigation; and
(b) if it determines that the report does so indicate,
shall notify the Director of Public Prosecutions of the determination
and send him a copy of the report”.
3. The Inquiries Act 2005 (“the 2005 Act”)
- The
2005 Act came into force on 7 June 2005. Its objective is to provide
a framework under which inquiries, set up by Ministers into events
that have caused or have potential to cause public concern, can
operate effectively to deliver valuable and practicable
recommendations in reasonable time and at a reasonable cost. Section
2 is entitled “No determination of liability” and
provides that:
“(1) An inquiry panel is not to rule on, and has
no power to determine, any person’s civil or criminal
liability.
(2) But an inquiry panel is not to be inhibited in the
discharge of its functions by any likelihood of liability being
inferred from facts that it determines or recommendations that it
makes.”
- Section
18 of the 2005 Act requires the Chairman to take such steps as he
considers reasonable to ensure that members of the public have access
to evidence provided to him subject to any restrictions imposed under
section 19 of the 2005 Act. Section 19 permits the Chairman to impose
restrictions on disclosure, subject to the conditions set out in
sub-sections (3) to (5). In determining whether to impose any such
restriction the Chairman may follow any procedure determined by him,
pursuant to section 17 of the Act, and having regard to paragraph 12
of the Inquiry Rules 2006 (see directly below).
4. The Inquiry Rules 2006 (“the 2006 Rules”)
- Rule
5 of the 2006 Rules permits the Chairman to designate a person as a
“core participant”, which person will therefore have
special participative rights.
- Rule
12 (“Disclosure of potentially restricted evidence”)
provides:
“(1) In this rule -
(a) “potentially restricted evidence” means
any evidence which is in the possession of the inquiry panel, or any
member of the inquiry panel, and which is the subject of a relevant
application which has not been determined or withdrawn;
(b) “relevant application” means an
application which is
(i) made by any person that evidence or documents are
the subject of a restriction notice made by the Minister pursuant to
section 19(2)(a) of the Act;
(ii) made by any person that the chairman exercise his
discretion under section 19(2)(b) of the Act; or
(iii) made by any person that evidence or documents be
withheld on grounds of public interest immunity,
and which entails the withholding of evidence from the
public.
(2) Subject to paragraph (3), potentially restricted
evidence is subject to the same restrictions as it would be subject
to if the order sought in the relevant application had been made.
(3) Where the conditions in paragraph (4) are satisfied,
the chairman may disclose the potentially restricted evidence to a
person who would not otherwise be permitted to see it.
(4) The conditions are that -
(a) the chairman considers that disclosure to an
individual is necessary for the determination of the application; and
(b) the chairman has afforded the opportunity to -
(i) the person providing or producing the evidence to
the inquiry panel; or
(ii) any other person making the relevant application,
to make representations regarding whether disclosure to that
individual should be permitted.
(5) Any person who is shown potentially restricted
evidence pursuant to paragraph (3) shall owe an obligation of
confidence to the person who provided or produced the evidence to the
inquiry.
(6) A breach of the obligation referred to in paragraph
(5) is actionable at the suit of the person to whom the obligation is
owed, subject to the defences applying to actions for breach of
confidence.”
5. The Counter Terrorism Act 2008 (“the CTA”)
- Section
74 of the CTA amended the Regulation of Investigatory Powers Act 2000
to allow the disclosure of intercept material to the panel of an
Inquiry set up under the 2005 Act or to Counsel to such an Inquiry.
6. The Coroners and Justice Act 2009 (“the 2009
Act”)
- Section
16 of the 2009 Act is entitled “Investigations lasting more
than a year” and provides as follows:
“(1) A senior coroner who is conducting an
investigation under this Part into a person’s death that has
not been completed or discontinued within a year:
(a) must notify the Chief Coroner of that fact;
(b) must notify the Chief Coroner of the date on which
the investigation is completed or discontinued.
(2) In subsection (1) "within a year" means
within the period of 12 months beginning with the day on which the
coroner was made aware that the person’s body was within the
coroner’s area.”
- Schedule
1 to the 2009 Act provides for the suspension of an Inquest pending
an Inquiry under the 2005Act.
COMPLAINTS
-
The applicant complains under Article 2 about the delay to date in
holding an Article 2 compliant investigation into the death of her
son in 2005. This delay has been mainly caused by an unjustifiable
failure by the authorities to resolve in a timely manner the question
of disclosure and admission into evidence of secret material at an
Inquest or Inquiry.
The
applicant submits that she has not therefore been sufficiently
involved to date since she has not had access to all relevant
material. She also submitted that any limited progress to date has
been achieved by her persistence so the principle that the State must
take the initiative to investigate has been violated.
QUESTION TO THE PARTIES
Has
the investigation by the domestic authorities of the applicant’s
son’s death been carried out sufficiently promptly for the
purposes of Article 2 of the Convention (for example, Hugh Jordan
v. the United Kingdom, no. 24746/94, §§ 136-139, ECHR
2001 III (extracts); McKerr v. the United Kingdom, no.
28883/95, §§ 114 and 154, ECHR 2001 III); and and
Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07,
§ 167, 7 July 2011)?
