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FOURTH
SECTION
Application no. 58559/09
Collette and Michael HEMSWORTH
against
the United Kingdom
STATEMENT OF FACTS
THE FACTS
- The applicants, Mrs Collette Hemsworth
and Mr Michael Hemsworth, are Irish nationals who were born in 1961
and 1933, respectively. They both live in Belfast. They are
represented before the Court by Mr J. McGettrick, a lawyer practising
in Belfast.
2. The applicants are the wife and father,
respectively, of Mr John Hemsworth. The application concerns the
latter’s death in 1997.
A. The circumstances of the case
- The facts of the case, as submitted by the applicants,
may be summarised as follows.
1. The death of Mr John Hemsworth
- The applicants claimed that, at 1.00am on 7 July 1997,
John Hemsworth was walking home when he was passed by persons
who were being chased by police officers from the Blues
Operational Support Unit (“Blues OSU”) of the Royal
Ulster Constabulary (“RUC”). The applicants alleged that
one of those officers hit John Hemsworth on the face with a
truncheon and that he fell to the ground where he was kicked on the
left side and hit on the back with a truncheon by the officers. He
went home and informed his wife. He then went to hospital and he
alleged that RUC officers taunted him about the incident on his way.
He was treated for undisplaced fractures to both sides of his right
jaw bone.
- Following an article in a local newspaper about the
incident, two witnesses (one an allegedly direct witness) came
forward.
- Having experienced headaches and tingling in one arm in
late October/early November 1997, on 27 December 1997 John Hemsworth
began vomiting and complained of severe headaches. He collapsed and
was transferred to hospital where he died on 1 January 1998.
- On 3 January 1998 a pathologist found that John
Hemsworth died from a cerebral infarction, although it was not
possible to “correlate the recent thrombosis causing the fatal
cerebral infraction with any facial injury in 1997”.
2. The investigation by the RUC and the Inquest
- On 8 January 1998 the RUC began an investigation
supervised by the Independent Commission for Police Complaints.
- On 30 April 1998 the Coroner registered the death as he
considered, given the pathologist’s report, that an Inquest was
not necessary.
- In a report dated 4 August 1999 an expert in forensic
medicine instructed by the first applicant found that it was “highly
likely” that the assault was the sole underlying cause of
death. Further to her request to the Attorney General, on 2 February
2000 the latter ordered the Coroner to hold an Inquest (section 14 of
the Coroner’s Act (Northern Ireland) 1959).
- Subsequently, a forensic expert briefed by the Coroner
also concluded that, despite the delay between the fatal cerebral
infarct and the injury of July 1997, it was “likely that they
are linked in terms of causation”. The applicants claimed that
the original pathologist has now expressed his agreement with the two
expert opinions.
- The RUC then asked the applicants to provide them with
all relevant information and evidence and for their statements. The
applicants forwarded the deceased’s medical records and gave
statements to the RUC. The two witnesses who had volunteered were
interviewed as well as other persons living in the area. Numerous
police and military personnel on duty in the area, as well as those
deployed to the street where John Hemsworth was allegedly assaulted,
were interviewed. The RUC Report on the Investigation dated 3 May
2001 accepted that John Hemsworth had been injured on 7 July 1997 but
not that RUC officers had assaulted him or that those injuries had
led to his death. Certain parts of this report are redacted.
- On
7 June 2001 the Coroner opened a pre-Inquest hearing in 16 cases
(including into John Hemsworth’s death), the purpose of which
was to hear submissions on the implications of the judgments of this
Court of 4 May 2001 in certain cases concerning deaths in
Northern Ireland (including, Hugh Jordan v. the United Kingdom,
no. 24746/94, (extracts) and McKerr v. the United Kingdom, no.
28883/95, both in ECHR 2001 III). The first applicant was
legally represented, as she was for all domestic proceedings. The
hearing was adjourned given the possibility of the referral of those
cases to the Grand Chamber of this Court. In September 2001 the
Coroner again adjourned the pre-Inquest hearing, although he
indicated that John Hemsworth’s Inquest would take place after
Pearse Jordan’s Inquest (see the above-cited Hugh Jordan
judgment of this Court).
- On 1 September 2000 the first applicant applied for
legal aid for the Inquest under the Lord Chancellor’s
Extra-Statutory Scheme (established in July 2000). On 5 June 2001 she
began a judicial review action and that evening the Lord Chancellor
granted her limited funding. The action continued in order to
challenge the proposed limitation on funding. On 7 January 2003 the
High Court found against her as did the Court of Appeal (9 March
2005). Given information from that action, in January 2002 the first
applicant applied for legal aid under the Green Form Scheme. In
February 2002 limited legal aid was proposed but in a manner she
considered inconsistent with the State’s approach in the first
judicial review action. On 21 May 2003 the Legal Aid Department
accepted that there had been some confusion as to the sources of
legal aid for Inquests and it issued a notice of clarification. The
first applicant again issued judicial review proceedings. On 26 April
2004 the High Court found in her favour.
- In November 2002 the first applicant wrote to the
Coroner seeking progress in the Inquest. The Coroner responded that
he awaited the judgments of the House of Lords in the cases of Amin
(Regina v. Secretary of State for the Home Department ex parte
Amin, [2003] UKHL 51) and Middleton (Regina v. Her
Majesty’s Coroner for the Western District of Somerset and
other ex parte Middleton, [2004] UKHL 10). The first applicant
requested the Coroner to progress certain pre-Inquest matters. A
pre-Inquest hearing was held on 7 February 2003: some disclosure was
made to the first applicant.
- The applicants claimed that, during that hearing, the
Coroner advised that there was no evidence that the deceased had been
struck by RUC officers. The first applicant applied for the Coroner
to recuse himself. At a further pre-Inquest hearing on 2 September
2003, the Coroner accepted that he had to investigate the allegations
that RUC officers were responsible for the death so the first
applicant did not pursue the matter further.
- On 20 December 2004, at a further pre-Inquest hearing,
the first applicant provided the Coroner with a list of witnesses
they required including the police officers who were allegedly likely
to have been responsible for and/or to have witnessed the assault.
- During
2003-2007 a number of significant relevant judgments were delivered
by the House of Lords. That Court ruled in Amin (cited above)
on the requirements of an Article 2 compliant investigation and in
Middleton it ruled on the requirements of an Article 2
compliant Inquest (including on the potentially extended content of
the jury verdict). In McKerr ([2004] UKHL 12) the House of
Lords found that Article 2 was not engaged when the death preceded
the entry into force in 2000 of the Human Rights Act 1998 (“the
HRA”). Finally, in Jordan v. Lord Chancellor and Another
and McCaughey v. Chief Constable of the Police Service Northern
Ireland ([2007] UKHL 14), the House of Lords confirmed that the
HRA did not apply to a death preceding the entry into force of that
Act or, therefore, to the investigation of any such death and,
further, that section 8 of the 1959 Act required the Police Service
Northern Ireland (“PSNI”) to furnish to a Coroner
information it had or would thereafter be able to obtain (subject to
any relevant privilege or immunity) concerning the relevant death.
- A pre-Inquest hearing was convened in March 2008 when
the Coroner ruled on the witnesses he proposed to call, none of whom
were RUC officers. The first applicant applied to the Coroner to
recuse himself. The Coroner refused to do so in correspondence but
indicated that he would receive further representations as to why RUC
witnesses were required. The first applicant made such submissions.
By letter of 14 November 2008 the Coroner rendered his decision: he
refused to call any RUC witnesses or to recuse himself. The first
applicant began a judicial review action. On 9 March 2009 the
High Court found in favour of the first applicant: a new Coroner was
to be appointed and the RUC witnesses sought by the first applicant
were to be called to give evidence.
- Another pre-Inquest hearing took place on 16 September
2009: it was agreed to call additional witnesses requested by the
first applicant and the Crown Solicitor’s office confirmed that
full disclosure of all relevant materials had been made to the
Coroner and to the next-of-kin, subject to a few isolated matters
which were being dealt with.
- The Inquest began on 21 September 2009. It did not sit
each day and certain witnesses were unavailable through ill-health.
On 8 October 2009 the Coroner decided to discharge the jury having
regard to evidence which had emerged during the Inquest. The Coroner
had decided to take a statement from a possible eye-witness to the
assault. On receipt of the statement, it emerged that a PSNI officer
(“Officer M”) had taken the statement on the Coroner’s
behalf. However, Officer M had been a member of the RUC at the time
of the alleged assault of John Hemsworth. He was also the deputy
investigation officer and, in addition, he was due to be called as a
witness at the Inquest. The first applicant therefore requested and,
in October 2009, the Coroner obtained and disclosed Officer M’s
journal entries on the police investigation: it emerged therefrom
that Officer M had interviewed a soldier (Private G) in 2000.
Private G had told Officer M that, on the day when John Hemsworth was
allegedly assaulted, Private G had seen an officer in the RUC Blues
OSU assaulting a civilian with a baton in an area close to the
location of Mr Hemsworth’s alleged assault. Private G had also
told Officer M that a senior military officer as well as a senior RUC
officer from the RUC Blues OSU had told him that he should not report
this incident to his superiors.
- Given the time it would take to recall witnesses and
to call Private G, the Coroner decided to discharge the jury and
conduct the Inquest afresh. The Coroner was advised by the Crown
Solicitor’s Office that all documentation in relation to
Private G had been destroyed in August 2009. The Coroner ordered the
PSNI to prepare a paginated and indexed bundle of all material held
by them in relation to the death of John Hemsworth, including any
documentation held in relation to Private G, and that officers
unconnected with the original investigation should conduct this
disclosure exercise. The PNSI confirmed that the Legacy Support Unit
within the PSNI would deal with disclosure and that any officers
allegedly involved in the assault or the subsequent investigation
would have no further involvement.
- On 29 November 2009 a further pre-Inquest hearing was
held, when the PSNI confirmed that, by 4 December 2009, the Coroner
would be provided with the bundle of documents and the first
applicant with a redacted version of same. While no documents in
relation to Private G’s allegations had been retained, Private
G had been traced and his statement would be taken. The Inquest was
scheduled to begin on 21 January 2010.
- The Inquest resumed on 25 January 2010. On the second
and third days of the Inquest, two jurors advised the Coroner of
connections to the police. The Coroner acceded to the first
applicant’s request to discharge the jury on the basis that the
jury may have been already tainted.
- On 22 April 2010 the first applicant obtained an
expert medical report which found that marks on the deceased’s
face and back (apparent from photographs taken of him after the
alleged assault) were consistent with the allegations of assault by
police baton. The first applicant and the Coroner further
corresponded about progressing the Inquest. In June 2010 the Crown
Solicitor’s Office stated that it would brief an expert on the
photographs and the marks. It did so in October 2010. In January 2011
the Crown Solicitor’s Office’s expert reported but did
not address the question whether police batons could have made the
marks on the deceased’s body. In May 2011 a supplementary
expert report was submitted.
- The Inquest began on 16 May 2011 and heard evidence
until 24 May 2011: closing speeches were made on 26 May 2011. The
first applicant was unable to attend the Inquest due to ill-health.
Since the Supreme Court judgment of 18 May 2011 in McCaughey and
Another, Re Application for Judicial Review ([2011] UKSC 20), the
Coroner agreed that, so far as possible, the Inquest would be Article
2 compliant.
- On 27 May 2011 the Inquest jury rendered its verdict.
It found the medical causes of death to be cerebral infarction and
thrombosis of the right internal carotid artery. The jury accepted
that John Hemsworth was injured on 7 July 1997; that his injuries
included fractures to both the right and left hand sides of his jaw
bone, tramline bruising to the left jaw, neck and lower left side of
his back as well as bruising to the right jaw; that those injuries
“were most probably the underlying cause of his death”;
that the injuries were “consistent with those caused by someone
being struck by a baton, according to several expert witnesses”;
that the photographs showed “distinctive and characteristic
bruising associated with baton injuries”; that “the
factures and bruising injuries were caused by being struck by a baton
and kicked”; and that, since the RUC Blues OSU were the only
police on the relevant street on the relevant night, it was “highly
probable” that one or more of those officers was responsible
for the injuries to Mr Hemsworth.
- The applicants have confirmed that the Coroner is in
the process of referring the matter to the Director of Public
Prosecutions (“DPP”).
3. The Police Ombudsman
- Further to the first applicant’s request, the
Police Ombudsman reviewed the police file. In his report of 1 May
2007 he considered that the medical experts did not agree on a causal
link between the July 1997 injuries and the subsequent death so that
there was no evidence that any RUC officer was responsible for John
Hemsworth’s death and he could identify nothing further that he
could do to take the matter forward.
B. Relevant domestic law and practice
1. Inquests - Legislation
- Coronial law in Northern Ireland was amended and
consolidated in the Coroners Act (Northern Ireland) 1959 (“the
1959 Act”) supplemented by the Coroners (Practice and
Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”).
- Section 14 provides, as follows:
“Where the Attorney General has reason to believe
that a deceased person has died in circumstances which in his opinion
make the holding of an inquest advisable he may direct any coroner
... to conduct an inquest into the death of that person, and that
coroner shall proceed to conduct an inquest in accordance with the
provisions of this Act ...”
- Rule 15 provides that the proceedings and evidence at
an Inquest shall be directed solely to ascertaining who the deceased
was; to how, when and where the deceased came by his death; and to
the particulars for the time being required by the laws concerning
births and deaths registration. However, Rule 16 of the 1963 Rules
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].”
- Rule 23(2) of the 1963 Rules provides, since its
amendment in 1980:
“(2) A coroner who believes that action should be
taken to prevent the occurrence of fatalities similar to that in
respect of which the inquest is being held, may announce at the
inquest that he is reporting the matter to the person or authority
who may have power to take such action and report the matter
accordingly.”
- The Prosecution of Offences (Northern Ireland) Order
1972 provided (Article 6(2)) that:
“Where the circumstances of any death investigated
or being investigated by a coroner appear to him to disclose that a
criminal offence may have been committed he shall as soon as possible
furnish to the [DPP] a written report of those circumstances”.
It was replaced by section 35(3) of Justice (Northern Ireland) Act
2002:
“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 a written
report of the circumstances.”
2. Inquests – relevant recent jurisprudence
- Further to the delivery of this Court’s judgment
in Šilih v. Slovenia ([GC], no. 71463/01, 9 April
2009), the Supreme Court accepted that an Inquest compliant with
Article 2 should be held into the use of lethal force which took
place prior to the entry into force of the HRA (McCaughey and
Another, Re Application for Judicial Review [2011] UKSC 20). The
McCaughey case concerned shootings by the security forces in
Northern Ireland in 1990: the Inquest has not been held to date.
36. Hugh Jordan has taken numerous judicial review
actions about the investigation and Inquest into the death of his son
Pearse Jordan in 1992. Most recently, his appeal to the Court of
Appeal (alleging bias and partiality of the Coroner in a case where
the PSNI had been involved in the disclosure process as well as being
implicated in the death) fell away when the Coroner recused himself
(Hugh Jordan v. the Senior Coroner [2009] NICA 64). However,
in its judgment on costs’ issues, the Court of Appeal commented
on the delay in holding the Inquest into Pearse Jordan’s death:
“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.
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 nature and background extremely adversarial. The problems are
compounded by the fact that the [PSNI] which would normally be
expected to assist a coroner in non contentious cases is itself a
party which stands accused of wrong doing. It is not apparent that
entirely satisfactory arrangements exist to enable the PSNI to
dispassionately perform its functions of assisting the coroner when
it has its own interests to further and protect. If nothing else, it
is clear from this matter that Northern Ireland coronial law and
practice requires a focused and clear review to ensure the avoidance
of the procedural difficulties that have arisen in this inquest. What
is also clear is that the proliferation of satellite litigation is
extremely unsatisfactory and diverts attention from the main issues
to be decided and contributes to delay.”
COMPLAINTS
- The applicants complained under Article
2 of the Convention that certain, as yet unidentified, RUC officers
used unlawful force against the deceased who died as a
consequence.
- They further complained under Article 2 that there had
been a failure by the State to conduct an effective official
investigation into his death. They submitted that there was no
independence between the investigating police officers and those
officers allegedly responsible for the death. They noted that the RUC
investigation was not open to public scrutiny. They also submitted
that the investigation did not commence promptly or proceed with
reasonable expedition.
- Finally,
the applicants complained under Article 13 of the Convention that,
until the above-cited McCaughey judgment of the Supreme Court
in May 2011, they had no effective domestic remedy in respect of the
above alleged breaches of the procedural obligations of Article 2 of
the Convention.
QUESTIONS TO THE PARTIES
1(a) Can
the Court examine the substantive aspect of the applicant’s
complaint under Article 2 of the Convention given that the
applicants’ have not pursued civil proceedings? In this
respect, the parties are requested to comment on, inter alia,
the following jurisprudence:
-
Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000
I; Hay v. the United Kingdom (dec.), 41894/98; McKerr v.
the United Kingdom, no. 28883/95, § 19-23, ECHR 2001 III as
well as the Hugh Jordan, Shanaghan, Kelly and Others judgments
of the same date at §§ 110-115, 93-99 and 99-110,
respectively; McShane v. the United Kingdom, no. 43290/98, §§
99-105, 28 May 2002; and Bailey v. the United Kingdom, (dec.)
no. 39953/07, 19 January 2010; and
-
Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§
55-56, 20 December 2007, Beganović v. Croatia, no.
46423/06, § 56, ECHR 2009¬...; Fadime and Turan Karabulut
v. Turkey, no. 23872/04, §§ 31-48, 27 May 2010; Kopylov
v. Russia, no. 3933/04, § 121, 29 July 2010; Gäfgen
v. Germany [GC], no. 22978/05, § 119, ECHR 2010¬...; and
Darraj v. France, no. 34588/07, §§ 22-53, 4
November 2010.
1(b) Has
there been a violation of the substantive aspect of the right to life
guaranteed by Article 2 of the Convention as regards the death of
John Hemsworth (McCann and Others v. the United Kingdom,
27 September 1995, § 194, Series A no. 324)?
2(a) The parties are invited to comment on the bearing
which the judgment of the Supreme Court in McCaughey and Another,
Re Application for Judicial Review ([2011] UKSC 20) and the jury
verdict of May 2011 may have in respect of the procedural aspects of
the applicant’s complaint under Article 2?
(b) Have
the procedural protections guaranteed by Article 2 of the Convention
been complied with in the present case (the above-cited judgments in
the cases of McKerr, Hugh Jordan, Shanaghan and
of Kelly and Others as well as Finucane v. the United
Kingdom, no. 29178/95, ECHR 2003 VIII and McShane v. the
United Kingdom, cited above)?
The
parties are requested to address the issues of:
-
the effectiveness of the investigation;
-the
independence of the investigation and, notably, the independence of
the investigating officers from those officers allegedly responsible
for the death;
-
the adequacy of the public scrutiny of the investigation; and in
particular
-
the delay in holding the Inquest.
- Has
there been a violation of Article 13 of the Convention as regards the
rights guaranteed by Article 2 of the Convention?
