Research regarding a deadly shooting committed by British soldiers. The ECtHR did not find that the investigation was ineffective
JUDGMENT
Gribben v. United Kingdom 17.02.2022 (app. no. 28864/18)
SUMMARY
The case concerned the effectiveness of an investigation into a fatal shooting by British soldiers in
Northern Ireland.
Although the Court identified certain weaknesses, it was satisfied that the inquest into the shooting
had met the requirement under Article 2 (right to life/investigation) of the European Convention on
Human Rights to conduct an effective investigation. In particular the inquest had been thorough,
with a scope which had extended to broader questions relating to the planning and management of
the operation. Quite remarkably, after 20 years, all of the important witnesses, including all but one
of the soldiers involved in the shooting, had given evidence.
In its examination of the case, the Court emphasised the importance in Article 2 cases of it carrying
out an overall assessment of the investigation which had taken place. In that context it noted the
present case’s protracted procedural history, including two previous applications before it relating to
delay and to the conduct of the inquest, pointing out that it would be neither desirable nor
appropriate for it to act as a court of further appeal on an “adversarial battlefield” addressing each
and every challenge to the inquest procedure if and when it arose. Not only would this Court
effectively become a “court of fourth instance”, but the problem of delay at the domestic level
would also be further exacerbated.
PROVISION
Article 2
PRINCIPAL FACTS
The applicant, Sally Gribben, is an Irish national who was born in 1961 and lives in Dungannon
(Northern Ireland, the United Kingdom).
The applicant’s brother, Martin McCaughey, was shot and killed on 9 October 1990 by soldiers from
a specialist unit of the British Army. The soldiers had been carrying out a night-time surveillance
operation at a farm when Mr McCaughey and another person, Desmond Grew, appeared with AK47
rifles wearing gloves and balaclavas. The Irish Republican Army (IRA – an illegal paramilitary
organisation) subsequently stated publicly that the deceased had been IRA volunteers on active
service at the time.
In April 1993 the prosecuting authorities issued a direction of no prosecution in respect of the
soldiers involved in the shooting. The official reason for that decision was that the evidence was not
sufficient to prove that the soldiers had not been acting in self-defence.
An inquest was opened in March 2012 and ended in May 2012, with a unanimous verdict of “lawful
killing”. In addition to this short-term verdict, the jury also returned a narrative verdict finding that
the soldiers had opened fire in the belief that their lives had been in danger and that they had used
reasonable force in the circumstances.
Both before and during the inquest the deceased’s next of kin made multiple judicial review
applications and appeals to the Court of Appeal and Supreme Court, with the latter ultimately
refusing permission to appeal in December 2017.
The investigation in the present case has been the subject of two previous applications before the
European Court. In the first application the Court found in 2013 that there had been a violation of
Article 2 of the Convention on account of excessive investigative delay (see McCaughey and Others v. the United Kingdom, no. 43098/09). In the second application, lodged in 2015, the Court declared the complaints inadmissible as premature/for non-exhaustion of domestic remedies because the
domestic proceedings had still not concluded (see Gribben and Quinn v. the United Kingdom,
no. 20855/15).
The application was lodged with the European Court of Human Rights on 7 June 2018.
Relying on Article 2 (right to life/investigation) of the European Convention, Ms Gribben complained
that there had been a failure to conduct an effective investigation into the circumstances of the
death of her brother. She made five specific complaints about the conduct of the inquest, alleging:
that the coroner had failed to disclose potentially relevant material to the next of kin; that he had
failed to take adequate steps to ensure that one of the soldiers involved in the shooting, who had
previously given evidence at the inquest and who lived abroad, return to the UK to give further
evidence at the inquest; that he should not have conducted the inquest before a jury; that he had
failed to discharge a juror who lacked impartiality; and that there had been failings in his questions,
directions and summations to the jury.
THE DECISION OF THE COURT…
First, the Court pointed out that it did not intend for the parameters of an Article 2 compliant
investigation to be considered in a piecemeal and incremental fashion. Against the background of
the present case’s protracted procedural history, it observed that it would be neither desirable nor
appropriate for it to address each and every challenge to the inquest procedure if and when it arose.
Not only would this Court effectively become a “court of fourth instance”, but the problem of delay
at the domestic level would also be further exacerbated.
It emphasised that in Article 2 investigation cases, the normal course of events would involve the
next of kin lodging their application to the Court with reasonable expedition; the Court would then
carry out an overall assessment of the investigation which had taken place by reference to the
parameters identified in its case-law; and measures taken to enforce the judgment would fall to the
Committee of Ministers of the Council of Europe to supervise. Those measures should only form the
subject of a new application that could be dealt with by the Court if they raised a new issue which
had not been addressed in the judgment.
On the particular facts at hand, the Court accepted that the case concerned new aspects which it
had not covered in its previous judgment, which had only dealt with the promptness of the
investigation. Indeed, the applicants had been informed that if they were dissatisfied with the
progress or outcome of the ongoing domestic procedures, they could reintroduce their complaints.
The Court could not ignore the fact that more than 30 years had now passed since the death of
Mr McCaughey. The greater the delay, the greater the difficulty the authorities would have in
complying with the other essential parameters of an effective investigation since the lapse of time
would inevitably be an obstacle to the location of witnesses and the ability of witnesses to recall
events reliably. However, in this case the Court had already found a violation of Article 2 on account
of the delay in conducting the inquest and it had not been suggested that there was any further
culpable delay on the part of the authorities following its earlier judgment. Consequently, the Court
confined its assessment to the specific complaints made by the applicant about the conduct of the
inquest.
The Court found that the inquest had undoubtedly been thorough, with a scope which had extended
beyond the actual deaths and their causes, encompassing broader questions relating to the planning
and management of the operation. Quite remarkably, after 20 years, all of the important witnesses,
including all but one of the soldiers involved in the shooting, had given evidence.
It identified certain weaknesses in the inquest, most notably the failure to disclose to the next of kin
material relating to other fatal shootings the soldiers had been involved in, the failure to recall one
of the soldiers involved in the shooting to give further evidence, and the coroner’s decision not to
further investigate claims that a juror had been hostile towards the next of kin.
However, it did not consider that those weaknesses, either individually or cumulatively, had
undermined the inquest’s meeting of the investigation requirements of Article 2, namely to secure
the effective implementation of the domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for deaths occurring under their
responsibility.
The Court therefore declared the application inadmissible as manifestly ill-founded.
