Violation of Art. 2;No violation of Art. 14;No violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE Gervaise McKerr was driving a green ORG Escort , registration no . ORG CARDINAL . There were CARDINAL passengers in the car : PERSON and PERSON . None of the men was armed . At FAC , GPE , CARDINAL rounds were fired into the car by police officers of a specially trained mobile support unit of ORG ( ORG ) . All CARDINAL men were killed .

The facts relating to the death of Gervaise McKerr remain in dispute despite over DATE of inquest proceedings , CARDINAL criminal prosecutions and other related legal proceedings .

On DATE steps were taken by Chief Inspector PERSON to preserve the scene of the shooting . A doctor attended the scene and conducted a preliminary examination of the bodies . On CARDINAL DATE a forensic expert from ORG conducted a detailed examination of the scene and Professor PERSON carried out post - mortem examinations of the bodies . Photographs were taken of the scene and the bodies , and maps drawn up . On DATE the scene of crimes officer took possession of the police ORG rifles , a submachine gun and pistol . CARDINAL of the cartridges fired at the scene were recovered ( leaving CARDINAL unaccounted for ) . The police made house - to - house enquiries in the vicinity , in conjunction with an appeal in the press for any witnesses to come forward , and a meeting was organised with a local councillor .

As part of the investigation , on DATE , Detective Chief Inspector PERSON interviewed CARDINAL ORG officers from the CARDINAL - member mobile support unit . PERSON , PERSON and PERSON made written statements . These statements described the incident but did not mention that the deceased were the subject of surveillance by Special Branch officers and were believed to have set out to commit a murder . The officers had received instructions from the deputy head of Special Branch not to refer to the fact that they were Special Branch officers or that they had intelligence made available to them in advance of the incident . It was later alleged that this was in order to prevent the availability of advance intelligence becoming public knowledge and hampering efforts to fight terrorism .

On DATE the CARDINAL officers , PERSON , PERSON and NORP , were interviewed again in the light of the available forensic evidence . Written records were made of these interviews .

NORP The results of the ORG investigation were sent to ORG ( ORG ) to consider whether any prosecution should be brought . The ORG requested that further inquiries be made . On DATE and DATE the CARDINAL officers were interviewed , and on this occasion they stated that they had been briefed that the CARDINAL deceased were the subject of surveillance and were believed to have set out to commit a murder .

Shortly afterwards , the ORG decided that charges should be brought against these CARDINAL officers ( “ the CARDINAL defendants ” ) . The indictment was issued on DATE and , as amended on CARDINAL DATE , charged PERSON with the murder of PERSON , and PERSON and NORP with aiding , abetting , counselling and procuring PERSON to commit that offence .

The trial of the CARDINAL defendants took place in GPE DATE and DATE before Lord Justice PERSON , sitting without a jury . The prosecution case involved CARDINAL witnesses appearing at the trial to give evidence , while statements from a further CARDINAL witnesses were read out . Over CARDINAL exhibits were submitted in evidence .

At the close of the prosecution case Lord Justice PERSON found that the evidence against the CARDINAL defendants did not establish their guilt and , concluding that there was no case to answer , acquitted them . In his judgment giving his reasons for this conclusion , he stated :

“ The accused were tasked to arrest PERSON and PERSON on suspicion of having committed terrorist acts , including murder , and to prevent them carrying out a further murder which the police authorities had reason to believe was about to be attempted .

Each of the accused was so advised by his superiors and was further informed that the suspects would probably be armed and that they were both dedicated and dangerous terrorists who had let it be known that they would not be arrested alive . If they were arrested therefore it would be known to all concerned that firearms would probably have to be used to effect their arrest .

The degree of danger of the operation which was anticipated may be judged by the fact that the CARDINAL accused were issued with CARDINAL submachine gun , CARDINAL Ruger rifles , CARDINAL semi - automatic pistols and a total of CARDINAL rounds of ammunition .

The deceased were under surveillance and according to information received they set off in a car driven by ORG with the object of carrying out the proposed murder . A road block was then set up by the police in order to stop and arrest them .

They broke through the road block at high speed endangering the life of a police officer in so doing . The accused who were in a car nearby immediately gave chase . Shots were discharged after the escaping car .

At this point I had to be careful in assessing the evidence to leave out of account any self serving parts of statements made by the accused .

It was a dark wet DATE TIME and the forensic evidence satisfies me that bullets striking the rear window and other metal parts at the rear of the car would in such conditions emit flashes which could readily be mistaken for the muzzle flashes of guns fired from the back of the car especially after the rear window was broken as it was .

... I have no doubt that it was a reasonable conclusion that the accused were being fired at . In fact none of the persons escaping did have any firearms but each of the accused opened fire from their car as they travelled at high speed along the Tullygally East Road ...

I have no doubt that at this stage each of the accused was acting lawfully in shooting at the CARDINAL deceased as being the only practicable means of effecting their arrest and if need be of killing them in order to stop their escape and prevent the perpetration of murder ...

Quite apart from any question of self defence which may have been raised as a result of the apparent gun flashes from the car , the car , driven by ORG , was driven at high speed . It failed to negotiate a turn to the right to a slip road and it came to a rest a matter of QUANTITY up the slip road just off the left hand verge and on the sloping ground giving a drop of QUANTITY . The car in which the CARDINAL accused were pulled up on the other side of the road . All jumped out .

Without reference to the statements of the accused and relying exclusively on other ORG evidence it is clear that the passenger door of the car ... opened . The front passenger was PERSON and in the rear seat was PERSON .

The evidence of [ the forensic expert ] , which I accept , was that the ... experiments which he carried out [ showed that ] the opening of the passenger door from inside produced CARDINAL distinct metallic sounds , the first like the slide of a gun hitting the back blade ; the second like the slide hitting the front blade . These sounds were heard by him distinctly at a distance of QUANTITY .

The ORG case is that after the door was opened ... some or all of the accused struck PERSON in the back as he stood outside the car killing him instantly . ... the passenger side of the car would have been in shadow . In my view it matters not whether the accused on hearing the noise of the door being opened concluded that this was what was happening or whether they thought that CARDINAL of the occupants of the car was preparing to open fire on them .

In either event the act of shooting was not murder . In any event the noise established that CARDINAL or more of the occupants was alighting . If the noise was taken to be indicating that the front passenger was preparing to get out of the car that could only be interpreted as an attempt to get down the hill to escape into the country beyond or being an attempt to take up a position behind the car with the intention of opening fire . If on the other hand the noise was taken to be the operation of a gun slide it was unmistakable that a gunman proposed to open fire and immediate retaliatory action was required .

As seen and understood by the accused the car contained CARDINAL men , CARDINAL murderous gunmen who had not merely given no indication of submission but seemed prepared to shoot it out or at least escape in the dark . In those circumstances to open fire was to my mind the most obvious and only means of self defence and the only step consistent with their duty . Apart from running away it was the only reasonable course open to them .

It was in my view the use by them of such as was reasonable in the circumstances as appreciated by them , including their understanding of the mortal danger in which they were to effect arrests even though it may be by killing and to prevent the commission of the contemplated murder .

Their use of gunfire into the car was therefore plainly lawful within the terms of LAW of LAW ( GPE ) DATE as well as being the commensurate force for their own self - defence . ...

There was no time to my mind to weigh up the possibilities . At all costs and at all possible speed the danger had to be eliminated otherwise the consequences might have been fatal to themselves .

As I have read the papers and as I understand the evidence there never was the slimmest chance that the ORG could have hoped to secure a conviction . ... ”

The judge concluded with these comments :

“ I speak not of the inevitable concerns and worries of the accused or the additional danger that they are now likely to be in because their identities and appearances have been publicly exposed by this trial . I am thinking of the very widespread effects among other members of the police and indeed of the armed forces generally when a policeman or a soldier is ordered to arrest a dangerous criminal and ... to bring him back . How is he to consider his conduct ?

DATE it not be that some may now ask ‘ Am I to risk my life carrying out this order knowing that if I survive my reward will be a further risk of life imprisonment as a murderer’ . One would hope that they will accept the first risk as part of their duty but should they not also be entitled to expect that if they do so they will have the protection of the law unless it should appear with total blindness they may have overstepped the bounds of the criminal law .

As far as the CARDINAL deceased men who unhappily forfeited their lives are concerned they died not because they were victims of murder but because knowing that CARDINAL of them were wanted by the police on a charge of multiple murder and many other crimes they decided not to stop when confronted by the police and to risk all in an attempt to escape . It was a gamble which failed .

There is just CARDINAL final observation which I would like to make . ... I want to make clear that having heard the entire ORG case exposed in open court I regard each of the accused as absolutely blameless in this matter .

I consider that in fairness to them that finding also ought to be recorded together with my commendation for their courage and determination in bringing the CARDINAL deceased men to justice , in this case to the final court of justice . ”

Shortly after giving judgment , Lord Justice PERSON made a statement in open court :

“ Having regard to the widespread publicity which parts of my judgment have received and the observations which have been made upon it in the press and elsewhere , I have considered it desirable to clarify my views on CARDINAL matters .

First , I would point out that my observations related to the particular circumstances of that occasion and ought not to be read out of context . I would wish most emphatically to repudiate any idea that I would approve or that the law would countenance what has been described as a shoot - to - kill policy on the part of the police .

Like every other member of the public they have no right , in any circumstances , to use more force than appears to be reasonably necessary having regard to all the circumstances understood by them .

... I understand that in DATE certain further words of mine have been thought to mean that I was contemplating that the police force might be regarded as entitled to mete out summary justice by means of the bullet .

I do not believe that on any fair analysis my words were capable of that interpretation . Indeed , nothing was further from my mind , nor would I or any other judge contemplate for a second that such a view was tenable . ”

NORP In DATE and DATE there had been CARDINAL further fatal shooting incidents involving the ORG in GPE – the killing of PERSON and serious wounding of PERSON on DATE , and the killing of PERSON and PERSON on DATE . None of the deceased was armed .

On DATE the ORG exercised his statutory powers under Article PERSON ) of ORG ( GPE ) Order DATE to request the Chief Constable of the ORG to conduct further investigations into the CARDINAL cases . The Government stated that he did so as it appeared that , in certain statements of evidence , material and important facts had been omitted and matters which were untrue and misleading in material and important respects had been included . He also requested that he be provided with full information about the circumstances in which false and misleading evidence had been provided by any officer of the ORG and an investigation into whether there was evidence to suggest that any person was guilty of an offence of perverting the course of justice or any other offence in connection with the investigation of the CARDINAL shooting incidents .

On DATE PERSON , then Deputy Chief Constable of ORG , was appointed by the Chief Constable of the ORG to carry out the investigation , which was to investigate the circumstances in which certain members of the ORG had provided false or misleading evidence or purported evidence , and to investigate the conduct of members of the ORG in connection with the inquiries into the incidents .

NORP In DATE , DATE after the defendants were acquitted , they were interviewed by the ORG team , which included Detective Chief PERSON . Written records were kept of these statements . PERSON also made a written statement . According to his book PERSON ( see paragraph DATE below ) , on DATE , Mr PERSON wrote to the Chief Constable of the ORG , Sir PERSON , informing him of fresh evidence pointing to offences of unlawful killings by ORG officers . On DATE Mr Stalker sent his Interim Report to the ORG [ according to the ORG report on the PERSON book ( see paragraph CARDINAL ) this report consisted of CARDINAL pages , in CARDINAL separate volumes , including CARDINAL album of maps and photographs ] and , on DATE , Sir PERSON sent the report to the ORG for GPE . On DATE the ORG instructed Sir PERSON to release Special Branch files to Mr Stalker , which documents had been withheld on grounds of national security . The documents were handed over to Mr Stalker on or DATE .

On CARDINAL DATE Mr Stalker was removed from the inquiry and replaced by PERSON , Chief Constable of NORP Police , who was also asked to investigate allegations of impropriety against Mr Stalker concerning matters unrelated to the present case .

On DATE PERSON completed his investigation into Mr PERSON and , on CARDINAL DATE , Mr Stalker was reinstated by ORG . He did not , however , return to the inquiry .

On DATE Mr Stalker ’s deputy on the inquiry , PERSON , left the police and , on CARDINAL DATE , Mr Stalker himself also left .

Mr PERSON delivered his report to Sir PERSON and the ORG in CARDINAL sections , on DATE , DATE and DATE .

On DATE Sir PERSON , the then Attorney - General , made a statement in ORG in which he said , inter alia :

“ In regard to the shooting incidents ... the [ ORG ] had considered all the facts and information ascertained and reported by PERSON and PERSON , and he has re - examined the original ORG investigation files . He has concluded that the evidence does not warrant any further prosecution in respect of the shootings which occurred on DATE and CARDINAL DATE and which have already been the subject of prosecutions . ...

The [ ORG ] has however concluded that there is evidence of the commission of offences of perverting or attempting or conspiring to pervert the course of justice or of obstructing a constable in the execution of his duty , and that this evidence is sufficient to require consideration of whether prosecutions are required in the public interest and he has consulted me accordingly .

I have therefore taken steps to acquaint myself with all the relevant circumstances , including matters concerning the public interest and , in particular , considerations of national security that might properly affect the decision whether or not to institute proceedings .

I have informed the Director fully with regard to my consultations as to the public interest , and in the light of all the facts and information brought to his notice , the [ ORG ] has concluded , with my full agreement , that it would not be proper to institute any criminal proceedings . He has given directions accordingly . ”

CARDINAL officers were , according to the Government , the subject of disciplinary proceedings , and received admonitions and advice as to their future conduct .

In the book PERSON , published by Mr Stalker in DATE , the following descriptions of his investigation into the CARDINAL shooting incidents appeared :

“ The ORG inquiry discovered that the CARDINAL victims of the shooting had been under surveillance for TIME by the police who planned to intercept them at a place different from where the killings occurred . No serious attempt to attract the attention of the driver was made , and no policeman was struck by the car . Immediately after the incident the police officers drove from the scene with their weapons and returned to their base for a debriefing by senior Special Branch Officers . Officers from ORG ( ORG ) were denied access for DATE to the police officers involved and to their car , clothes and weapons for forensic examination . On TIME of the killings , ORG officers were given incorrect information about where the shootings began and part of the forensic examination was conducted in the wrong place . Many cartridge cases of rounds fired were never found . ”

“ We believed ... that CARDINAL officer had been in an entirely different position from that which he had claimed to be in when some fatal shots were fired . I also established that the police pursuit took place in a different manner from that described . But most damning of all , DATE after the shooting we found fragments of the bullet that undoubtedly killed the driver still embedded in the car . That crucial evidence had lain undiscovered by the ORG and ORG service ... My conclusion in relation to the missing cartridge cases was that CARDINAL were deliberately removed from the scene . I could only presume that this was in order to mislead the forensic scientists and to hide the true nature and extent of the shooting . ”

“ I had to regard the investigation of the matter as slipshod and in some aspects woefully inadequate . I was left with CARDINAL alternative conclusions , either that some ORG detectives were amateur and inefficient at even the most basic of murder investigation routines ; or that they had been deliberately inept . ”

“ Even though CARDINAL deaths had occurred over DATE period ... and involved in each case officers from the same specialist squad , no co - ordinated investigation had ever been attempted . It seemed that the investigating officers had never spoken to each other . Worse still , despite the obvious political and public implications , no senior officer had seen fit to draw the reports together . ”

“ We had expected a particularly high level of enquiry in view of the nature of the deaths , but this was shamefully absent . The files were little more than a collection of statements , apparently prepared for a coroner ’s enquiry . They bore no resemblance to my idea of a murder prosecution file . Even on the most cursory of readings I could see clearly why the prosecutions had failed . ”

According to ORG DATE , Mr Stalker also stated :

“ I never did find evidence of a shoot - to - kill policy as such . There was no written instruction , nothing pinned up on a noticeboard . But there was a clear understanding on the part of the men whose job it was to pull the trigger that that was what was expected of them . ”

In DATE the ORG issued a response to the book by PERSON . It stated in its introduction that the book contained many inaccuracies and distortions and gave a misleading impression . Their document aimed to highlight a selected number of misrepresentations . It was stated , in contradiction to Mr PERSON ’s assertions , that it was wrong to allege that the CARDINAL investigations were carried out under different detectives as the same detective superintendent was in charge of CARDINAL of the investigations ; that the investigation files were presented to the ORG in the format approved by him ; that it was already established in a police statement of CARDINAL DATE that no police officer had been struck by the car driven by PERSON ; that it had been advisable , for the safety of the CARDINAL officers , that they leave the scene immediately ; that their weapons had been seized without delay by the scene of crimes officers ; that no incorrect information was given to the investigating officers concerning where the shooting occurred , although uniformed officers had mistakenly positioned the tape on the junction and it was repositioned accurately shortly afterwards ; it was accepted that all the cartridges were not recovered but due to the torrential rain at the time some could have been washed down the drains ; the area had nonetheless been swept over for DATE with metal detectors .

Criticisms were also made that Mr Stalker had gone outside his remit to reinvestigate the shooting incidents as well as a terrorist incident on CARDINAL DATE in which QUANTITY police officers had been killed and that his report , when submitted , lacked the clarity and precision normally associated with criminal investigations .

The Government have also submitted that on DATE Mr PERSON , on the occasion of his withdrawal of a libel action against the RUC Chief Constable , made a statement in which he took the opportunity to submit publicly that he was satisfied that the ORG had not pursued a shoot- to - kill policy in DATE and that the ORG Chief Constable had not condoned or authorised any deliberate or reckless killings by his officers . Other members of the ORG inquiry team also stated in DATE that “ the LOC officers wish to stress that the Stalker / Sampson Enquiry found no evidence of a ‘ Shoot to Kill policy’ ” .

An inquest into the deaths was opened by the GPE coroner , PERSON PERSON , on DATE at the conclusion of the criminal trial . On or CARDINAL DATE Mr PERSON resigned . The applicant alleged that this was due to irregularities in the ORG files concerning the deaths . The inquest was due to be heard in DATE before Mr Elliott but was adjourned on the application of PERSON legal representatives . The coroner then waited until after the conclusion of the ORG investigation before scheduling the inquest to reopen on DATE .

The coroner was provided with all the witness statements , forensic evidence , maps and photographs which were obtained as part of the ORG investigation and the ORG investigations . Parts of some of the witness statements were deleted in the public interest for reasons of national security .

On DATE the coroner held a preliminary meeting , attended by the legal representatives of the interested parties , including the relatives of the deceased , at which he stated that he intended to admit in evidence the written statement of PERSON and officers PERSON and NORP

On DATE PERSON , the then Secretary of ORG for GPE , issued a Public Interest Immunity Certificate ( “ PII Certificate ” ) which , the applicant alleged , prevented the disclosure of a substantial amount of information that would otherwise have been available to the inquest due to open DATE . The certificate covered any information or documents which might reveal , inter alia :

– details of ORG counter - terrorist capabilities , including methods of operation , specialist training and equipment ;

– details of the intelligence which gave rise to the belief that there was a conspiracy to murder an off - duty member of the security forces and the methods by which such intelligence was gleaned ; and

– certain details of surveillance mounted by the ORG as part of the operation during which ORG , GPE and PERSON were killed .

On DATE the inquest opened . The coroner admitted unsworn evidence by the CARDINAL officers PERSON , PERSON and NORP , who had declined to appear to give evidence at the inquest .

On DATE an adjournment was granted at the request of PERSON solicitor who took proceedings for judicial review to challenge the admission of the unsworn statements . The application was refused on DATE by Mr Justice PERSON . On appeal , ORG held on DATE that the Coroners’ Practice and Procedure Rules ( which conferred on the coroner the discretion to admit the statements ) were ultra vires since PERSON , PERSON and NORP were compellable witnesses . Leave to appeal to ORG was granted to the ORG on DATE . On DATE ORG overturned the judgment , holding that LAW and Procedure were not ultra vires and that these officers could not be compelled to attend the inquest .

The inquest proceedings , due to recommence on DATE , were adjourned further while PERSON commenced a second set of judicial review proceedings challenging the admission of the statements of the CARDINAL officers . Mr Justice PERSON on CARDINAL DATE and ORG on DATE rejected the application as raising no new issues .

On DATE PERSON legal representatives wrote to the coroner requesting that the inquest not be resumed pending an appeal in judicial review proceedings relating to an inquest into the deaths of CARDINAL other persons ( the PERSON case , where relatives of the deceased had challenged the power of the coroner to admit written statements from the soldiers who had shot the deceased ) . The request was granted . Judgment was given by ORG in that case on DATE and by ORG on DATE , upholding the power of coroners to admit written statements .

On DATE a second inquest resumed under Coroner PERSON . The coroner stated in his address to the jury :

“ The purpose of an Inquest is the investigation in public of all the facts and circumstances surrounding an unnatural death . It follows , therefore , that an inquest is usually unnecessary when those facts have already been investigated and made public in a criminal court on a prosecution for homicide . You may recall that in DATE QUANTITY police officers were prosecuted for the murder of CARDINAL of the deceased , PERSON , but were acquitted . In the course of their trial there was a very full examination of the facts surrounding the CARDINAL deaths and had there not been another factor to consider , I would have decided that an Inquest was unnecessary . That factor , which makes the investigation of these deaths wholly exceptional , is a subsequent investigation carried out by ORG : the so - called ORG . The statements they took have been made available to me and the public has a proper interest in knowing whether any further evidence came to light . For that reason and that reason alone , I am holding Inquests . ”

The inquest continued until CARDINAL DATE , in public , before a jury , and involved the hearing of CARDINAL witnesses over DATE . PERSON was represented by a barrister , who cross - examined the witnesses and made extensive legal submissions . The ORG were also represented .

On DATE a witness , officer NORP , said that he had had recourse to the statement he had made to the ORG on CARDINAL DATE , prior to giving evidence at the inquest . Counsel for PERSON asked to see this statement but the coroner refused his request , as the witness did not have it about his person and it was the property of the ORG . On DATE , at the applicant ’s request , the inquest was adjourned . The same day , Mrs Creaney ’s solicitor sought leave in the High Court for judicial review of , inter alia , the coroner ’s decision refusing access to witness NORP ’s statement . Leave for judicial review was initially refused on DATE but finally granted by ORG on DATE .

On DATE Judge PERSON ruled that PERSON had no right to see the statement and also declined to rule that she could have a list of the jurors , although he strongly recommended that the names of the jurors be read out in open court on resumption of the inquest . On DATE ORG overturned the former decision , holding that counsel was entitled to see the witness statement of CARDINAL DATE and that the coroner could order production of the statement from the ORG , and , if it was not produced , could issue a subpoena .

On DATE the coroner wrote to Detective Chief PERSON of the ORG , recalling that , prior to the adjournment of the inquest , he had expressed his view that CARDINAL ORG witnesses ( including PERSON , Mr PERSON ’s deputy on the inquiry ) should be granted access to documents and papers relating to their investigation as members of ORG . Chief PERSON replied that none of the police officers mentioned had requested access and that he therefore presumed they had been able to brief themselves on papers in their own possession .

On DATE Mr PERSON wrote to the Chief Constable of the Greater Manchester Police requesting access to the statement file and forensic evidence relating to the killing at Tullygally Road on DATE . By letter of DATE , the coroner was informed that the Chief Constable of the ORG had advised ORG that PERSON PERSON should not be allowed access to the documents requested . He was also informed that the documents were part of the inquiry and were therefore the property of the ORG , to which all subsequent requests should therefore be addressed .

Following a meeting on DATE with the representatives of the interested parties , including PERSON , the coroner served a subpoena on the Chief Constable of the ORG requiring him to attend with reports on the ORG investigations .

On DATE the legal adviser of the ORG wrote to the coroner stating that he had now been informed by ORG that they did not hold any papers other than those held by the ORG , which , apart from the PERSON and PERSON reports , the coroner already had in his possession . He also raised the fact that the documents were likely to be covered by public interest immunity . By letter of CARDINAL DATE the coroner referred to a conversation of DATE with the legal adviser of the ORG , wishing to formally put on record his surprise at hearing that documents in the possession of ORG had been destroyed . The ORG legal adviser replied on DATE , stating that he had never said that documents had been destroyed . On CARDINAL DATE the coroner requested the legal adviser to confirm that all documents referred to in the schedule to the subpoena were in existence and to identify their location .

By letter dated CARDINAL DATE the ORG legal adviser informed the coroner that , contrary to information previously given to him , a number of filing cabinets containing documents from the inquiry had been located with ORG . These had been handed over to the ORG and were in his view covered by the PII Certificate .

Meanwhile , on DATE the inquest was closed and the jury discharged . The inquest was reopened on DATE . In reopening the inquest , the coroner informed PERSON solicitors by letter dated DATE that :

“ Re : inquests into the deaths of –

( CARDINAL ) PERSON , PERSON and PERSON

... A criminal trial arose out of each of these incidents and normally where that occurs an Inquest is unnecessary as all the facts are likely to have been fully investigated in public at the trial .

However , as you are aware , the circumstances surrounding these deaths was the subject of an investigation carried out by ... Mr PERSON ... and Mr PERSON ... between DATE and DATE . Their reports were subsequently submitted to the Chief Constable of ORG . I am of the opinion that the public has a proper interest in knowing whether any further evidence came to light subject to this evidence being within the proper scope of an Inquest . Were it not for this unique aspect of the investigation into the deaths I would not hold Inquests but would proceed to register the deaths .

The purpose of formally opening these Inquests is to determine whether it will be possible for me to achieve my aim . CARDINAL of the witnesses whom it is my present intention to call is ex - Detective Chief Superintendent PERSON ... who played a leading role in the ... investigation . He would be in a position to give material evidence only if he had access in advance of the Inquest to certain working papers and other documents which are presently in the custody of the Chief Constable . After a lapse of DATE it is important that he has the opportunity to refresh his memory by carefully re - examining these so that the evidence that he gives will be as accurate as possible ... ”

The coroner issued a fresh subpoena on DATE requiring Sir PERSON , Chief Constable of the ORG , to attend before him in connection with the inquest and to produce :

( i ) a copy of ORG ( including statement files , exhibits and forensic file ) ;

( ii ) a copy of the draft and final ORG ( including documents and statement files ) ;

( iii ) a copy of the draft and final ORG ( including statements , exhibits , and forensic files ) ;

( iv ) thirteen files of action sheets ;

( v ) NORP computer disks ;

( vi ) photographs and maps ;

( vii ) press cuttings , a file and videos of TV programmes ;

( viii ) interview notes of ORG officers ;

( ix ) trial transcripts ;

( x ) a book of handwritten notes of trials ;

( xi ) three interview indexes ;

( xii ) original ORG documents ( ref . FAC ) ;

( xiii ) fifteen document files designated PERSON , CARDINAL - CARDINAL , CARDINAL , CARDINAL - CARDINAL , CARDINAL and CARDINAL ; and

( xiv ) presentation documents .

On DATE the Chief Constable of the ORG issued a summons to have the subpoena set aside on the grounds that he had no personal knowledge of the facts at issue at the inquest and should not therefore be required to give evidence ; that the documents sought under the subpoena should not be disclosed as they consisted of documents which ought not to be disclosed in the public interest and to which a claim of public interest immunity properly attached ; and that in the circumstances the issue of the subpoena was oppressive , vexatious and an abuse of the process of the court .

On DATE the coroner served an affidavit stating that he did not require the Chief Constable to give any evidence in respect of his personal knowledge but required him to produce the ORG and PERSON reports that were in his custody . He stated that he required the production of these reports for the sole purpose of enabling ex - Detective Chief Superintendent PERSON , who played a leading role in the investigations connected with , and in the preparation of , the reports , to refresh his memory , so that the evidence he gave at the inquest would be as accurate as possible . He further stated the following :

“ CARDINAL . I am of the opinion that the public has a proper interest in knowing whether any further evidence touching the causes of the material deaths came to light as a result of the said investigations , subject , of course , to that evidence being within the proper scope of the Inquests .

Were it not for this unique aspect of the investigation into the deaths ( being the investigations which led to the production of the said Reports ) , I would not hold Inquests , but would proceed to register the material deaths .

I have issued the material Writs of Subpoena only because ORG has refused PERSON access to the original investigation papers .

Accordingly , if the material Writs of Subpoena are set aside , so that the said Reports are not available for the purposes of the Inquests , I will consider that there will be no useful purposes to be served in proceeding with the Inquests , and I will close them , and proceed to register the material deaths . ”

On DATE Sir PERSON ( then Secretary of ORG for GPE ) issued a further ORG stating that the disclosure of the ORG and PERSON reports would cause serious damage to the public interest and that he considered it his duty to issue the ORG in order to protect the public interest , in summary constituting the following :

“ ( a ) the need to protect the operational efficiency of the special units of ORG and ORG and ORG ;

( b ) the need to protect the integrity of intelligence operations ;

( c ) the need to protect the future usefulness of ORG , ORG personnel ;

( d ) the need to protect the lives and safety of ORG , ORG personnel and their families , and the lives and safety of persons , and their families , who have provided or may provide information and intelligence to the security forces . ”

NORP The Secretary of ORG emphasised the need , first , to protect the integrity of the process of criminal investigations and the making of decisions as to prosecutions and , secondly , the need to preserve the efficacy of the ORG ’s efforts to counter terrorism and the safety from terrorist attack of persons involved in those efforts . As regards the work of special units of the ORG , he stated that these units and personnel carried out security , intelligence and surveillance work . The work of all these units required secrecy if it was to be effective . The disclosure of , or evidence about , the identity of members of the special units of ORG , ORG and ORG could substantially impair their capability to perform the tasks assigned to them and could put their lives at risk .

On DATE the Chief Constable swore a further affidavit in which he stated that he had been informed that copies of all witness statements , forensic evidence photographs and maps from the first CARDINAL ORG investigations and the PERSON and PERSON inquiries had been provided to the coroner subject to certain deletions from various statements and transcripts . He stated that the coroner was therefore in possession of all the documentary evidence from the CARDINAL investigations and should be in a position to identify any further evidence which came to light during the PERSON and PERSON inquiries . On DATE the Chief Constable applied to ORG for the writ of subpoena to be set aside .

On DATE the coroner swore a further affidavit stating that he was satisfied that relevant new material germane to the inquests had been found by the police during the PERSON and PERSON inquiries and that he had spoken to PERSON ( Mr Stalker ’s deputy ) and PERSON ( Mr PERSON ’s deputy ) , who informed him that they required access to the documents in issue in order to identify the headings of the new material and give accurate evidence thereon .

On DATE Judge PERSON set aside the subpoenas on the grounds that they were not necessary to the proper purpose of the inquest and that the materials in question should not be disclosed in view of the PII Certificate . He stated , inter alia :

“ ... [ The Coroner ] stated that his enquiries satisfied him that there was relevant new material in the Reports . The source of this information must have been Mr PERSON or PERSON ...

It is not disputed by counsel for the Coroner that all witness statements have been given to the Coroner . There remain recommendations , expressions of opinion , comments , criticisms and the like . I can think of nothing else .

This leads me to the conclusion that the Coroner is seeking material about the ‘ broad ORG in which the killings took place in order to deal with rumours and suspicions that there was a ‘ shoot to LOC policy . ...

The recent decision of ORG in GPE indicates that he is not entitled to do so . There is nothing to prevent him from calling PERSON or PERSON PERSON if they can give relevant evidence touching the deaths of the deceased . But in my opinion it is not proper for Mr PERSON to give an ‘ ORG to the jury . ...

The Reports are not relevant to the Coroner ’s inquiry and the overriding public interest in the integrity of the criminal process makes it ‘ oppressive and an abuse of the process of the ORG to permit production of the Reports for the purpose sought by the Coroner . The writs of subpoena should be set aside for these reasons .

This is not a reflection or criticism of the Coroner . I am satisfied that he is genuinely concerned to deal openly with the fears and suspicions that there was a ‘ shoot to kill’ policy . But the Coroner ’s court is not the proper forum in which this kind of issue can properly be dealt with .

The third question with which I propose to deal with briefly is the claim to public interest immunity in the interests of national security ...

I accept that there is evidence that national security would be imperilled by the production of these CARDINAL Reports . Were PERSON to use them to refresh his memory , other parties to the inquest would be entitled to call for them . ... ”

On DATE the coroner issued a ruling abandoning the inquest into PERSON death , stating :

“ I am satisfied that my aim in deciding to hold Inquests for the reasons I expressed to the jury when I opened the Inquests into the deaths of GPE , PERSON and PERSON is no longer achievable . ”

On DATE PERSON issued a writ of summons against the Chief Constable of the ORG in ORG , claiming damages under LAW ( LAW ( GPE ) and ORG ( GPE ) Act DATE for personal injuries , loss and damage sustained by her husband , his estate and dependants by reason of the assault , battery , conspiracy , negligence , nuisance and trespass to the person by the police officers involved in the security operation on CARDINAL DATE .

No further steps to proceed with these claims were taken by PERSON Creaney or , since her death , by the applicant .

Section CARDINAL of LAW ( GPE ) DATE provides , inter alia :

“ CARDINAL . A person may use such force as is reasonable in the circumstances in the prevention of crime , or in effecting the arrest or assisting in the lawful arrest of offenders or suspected offenders or persons unlawfully at large . ”

Self - defence or the defence of others is contained within the concept of the prevention of crime ( see , for example , ORG on criminal law ) .

The conduct of inquests in GPE is governed by LAW ( GPE ) DATE and ORG and Procedure ) Rules ( GPE ) DATE . These provide the framework for a procedure within which deaths by violence or in suspicious circumstances are notified to the coroner , who then has the power to hold an inquest , with or without a jury , for the purpose of ascertaining , with the assistance as appropriate of the evidence of witnesses and reports , inter alia , of post- mortem and forensic examinations , who the deceased was and how , when and where he died .

According to LAW , every medical practitioner , registrar of deaths or funeral undertaker who has reason to believe a person died directly or indirectly by violence is under an obligation to inform the coroner ( section CARDINAL ) . Every medical practitioner who performs a post - mortem examination has to notify the coroner of the result in writing ( section CARDINAL ) . Whenever a dead body is found , or an unexplained death or death in suspicious circumstances occurs , the police of the district are required to give notice to the coroner ( section CARDINAL) .

Rules CARDINAL and CARDINAL of the Coroners Rules give the coroner power to adjourn an inquest where a person may be or has been charged with murder or other specified criminal offences in relation to the deceased .

DATE . Where the coroner decides to hold an inquest with a jury , persons are called from the Jury List , compiled by random computer selection from the electoral register for the district on the same basis as in criminal trials .

The matters in issue at an inquest are governed by LAW and QUANTITY of LAW :

“ CARDINAL . The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters , namely : –

( a ) who the deceased was ;

( b ) how , when and where the deceased came by his death ;

( c ) the particulars for the time being required by ORG ) Order DATE to be registered concerning his death .

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 DATE foregoing Rule . ”

The forms of verdict used in GPE accord with this recommendation , recording the name and other particulars of the deceased , a statement of the cause of death ( for example , bullet wounds ) and findings as to when and where the deceased met his death . In GPE and GPE , the form of verdict appended to the English Coroners Rules contains a section marked “ Conclusions of the jury / coroner as to the death ” in which conclusions such as “ lawfully killed ” or “ killed unlawfully ” are inserted . These findings involve expressing an opinion on criminal liability in that they involve a finding as to whether the death resulted from a criminal act , but no finding is made that any identified person was criminally liable . The jury in GPE and GPE may also append recommendations to their verdict .

NORP However , in GPE , the coroner is under a duty ( section CARDINAL(CARDINAL ) of the Prosecution of Offences ( GPE ) Order DATE ) to furnish a written report to the ORG where the circumstances of any death appear to disclose that a criminal offence may have been committed .

Until recently , legal aid was not available for inquests as they did not involve the determination of civil liabilities or criminal charges . Legislation which would have provided for legal aid at the hearing of inquests ( ORG , Advice and Assistance ( Northern Ireland ) Order DATE , Schedule CARDINAL , paragraph CARDINAL ) has not been brought into force . However , on DATE the Lord Chancellor announced the establishment of an extra - statutory ex gratia scheme to make public funding available for representation for proceedings before coroners in exceptional inquests in GPE . In DATE he published for consultation the criteria to be used in deciding whether applications for representation at inquests should receive public funding . These included , inter alia , consideration of financial eligibility , whether an effective investigation by the ORG was needed and whether the inquest was the only way to conduct it , whether the applicant required representation to be able to participate effectively in the inquest and whether the applicant had a sufficiently close relationship with the deceased .

The coroner enjoys the power to summon witnesses whose presence he deems necessary at the inquest ( section CARDINAL of LAW ) and he may allow any interested person to examine a witness ( Rule CARDINAL ) . In both GPE and GPE and GPE , a witness is entitled to rely on the privilege against self - incrimination . In GPE , this privilege is reinforced by Rule CARDINAL(CARDINAL ) which provides that a person suspected of causing death may not be compelled to give evidence at the inquest .

In relation to both documentary evidence and the oral evidence of witnesses , inquests , like criminal trials , are subject to the law of public interest immunity , which recognises and gives effect to the public interest , such as national security , in the non - disclosure of certain information or certain documents or classes of document . A claim of public interest immunity must be supported by a certificate .

Rules DATE and DATE ( see above ) follow from the recommendation of ORG :

“ ... the function of an inquest should be simply to seek out and record as many of the facts concerning the death as the public interest requires , without deducing from those facts any determination of blame ... In many cases , perhaps the majority , the facts themselves will demonstrate quite clearly whether anyone bears any responsibility for the death ; there is a difference between a form of proceeding which affords to others the opportunity to judge an issue and CARDINAL which appears to judge the issue itself . ”

DATE . Domestic courts have made , inter alia , the following comments :

“ ... It is noteworthy that the task is not to ascertain how the deceased died , which might raise general and far - reaching issues , but ‘ how ... the deceased came by his ORG , a far more limited question directed to the means by which the deceased came by his death .

... [ previous judgments ] make it clear that when ORG stated that one of the purposes of an inquest is ‘ To allay rumours or suspicions’ this purpose should be confined to allaying rumours and suspicions of how the deceased came by his death and not to allaying rumours or suspicions about the broad circumstances in which the deceased came by his death . ” ( Sir PERSON , ORG , NORP v. the Coroner for GPE and GPE , ex parte PERSON , DATE , unreported )

“ The cases establish that although the word ‘ how’ is to be widely interpreted , it means ‘ by what ORG rather than in what broad circumstances ... In short , the inquiry must focus on matters directly causative of death and must , indeed , be confined to those matters alone ... ” ( ORG , ORG , NORP v. Coroner for LOC of GPE , ex parte PERSON and Others ( DATE ) CARDINAL Justice of ORG )

“ ... it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt . The procedure and rules of evidence which are suitable for CARDINAL are unsuitable for the other . In an inquest it should never be forgotten that there are no parties , no indictment , there is no prosecution , there is no defence , there is no trial , simply an attempt to establish the facts . It is an inquisitorial process , a process of investigation quite unlike a trial ...

It is well recognised that a purpose of an inquest is that rumour may be allayed . But that does not mean it is the duty of the Coroner to investigate at an inquest every rumour or allegation that may be brought to his attention . It is ... his duty to discharge his statutory role – the scope of his enquiry must not be allowed to drift into the uncharted seas of rumour and allegation . He will proceed safely and properly if he investigates the facts which it appears are relevant to the statutory issues before him . ” ( Lord Lane , ORG , NORP v. GPE , ex parte PERSON ( DATE ) CARDINAL Solicitors’ Journal CARDINAL )

There was no requirement prior to DATE for the families at inquests to receive copies of the written statements or documents submitted to the coroner during the inquest . Coroners generally adopted the practice of disclosing the statements or documents during the inquest proceedings , as the relevant witness came forward to give evidence .

Following the recommendation of ORG no . CARDINAL ( concerning deaths in custody or deaths resulting from the actions of a police officer in purported execution of his duty ) advised chief constables of police forces in GPE and GPE to make arrangements in such cases for the pre - inquest disclosure of documentary evidence to interested parties . This was to “ help provide reassurance to the family of the deceased and other interested persons that a full and open police investigation has been conducted , and that they and their legal representatives will not be disadvantaged at the inquest ” . It was recommended that such disclosure should take place DATE before the inquest .

Paragraph CARDINAL of the circular stated :

“ The courts have established that statements taken by the police and other documentary material produced by the police during the investigation of a death in police custody are the property of the force commissioning the investigation . The Coroner has no power to order the pre - inquest disclosure of such material ... Disclosure will therefore be on a voluntary basis . ”

Paragraph CARDINAL listed some kinds of material which require particular consideration before being disclosed , for example :

– where disclosure of documents might have a prejudicial effect on possible subsequent proceedings ( criminal , civil or disciplinary ) ;

– where the material concerns sensitive or personal information about the deceased or unsubstantiated allegations which might cause distress to the family ; and

– personal information about third parties not material to the inquest .

Paragraph CARDINAL envisaged that there would be non - disclosure of the investigating officer ’s report although it might be possible to disclose it in those cases which the Chief Constable considered appropriate .

NORP The police complaints procedure was governed at the relevant time by the Police ( GPE ) Order DATE ( “ the DATE LAW ) . This replaced ORG , which had been set up in DATE by ORG ( ORG ) . Since DATE , the ORG has been replaced by ORG for GPE appointed under LAW Act DATE .

The ORG was an independent body , consisting of a chairman , CARDINAL deputy chairmen and CARDINAL other members . Where a complaint against the police was being investigated by a police officer or where the Chief Constable or Secretary of ORG considered that a criminal offence might have been committed by a police officer , the case was referred to the ORG .

Under Article PERSON ) of the DATE Order , the ORG was required to supervise the investigation of any complaint alleging that the conduct of a ORG officer had resulted in death or serious injury . Its approval was required for the appointment of the police officer to conduct the investigation and it could require the investigating officer to be replaced ( LAW . For a supervised investigation , a report by the investigating officer was submitted to the ORG at the same time as to the Chief Constable . Pursuant to LAW , the ORG issued a statement as to whether the investigation had been conducted to its satisfaction and , if not , specifying any respect in which it had not been so conducted .

Under LAW , the Chief Constable was required to determine whether the report indicated that a criminal offence had been committed by a member of the police force . If he so decided and considered that the officer ought to be charged , he was required to send a copy of the report to the ORG . If the ORG decided not to prefer criminal charges , the Chief Constable was required to send a memorandum to the ORG indicating whether he intended to bring disciplinary proceedings against the officer ( Article CARDINAL ) ) , save where disciplinary proceedings had been brought and the police officer had admitted the charges ( Article CARDINAL(CARDINAL ) ) . Where the Chief Constable considered that a criminal offence had been committed but that the offence was not such that the police officer should be charged or where he considered that no criminal offence had been committed , he was required to send a memorandum indicating whether he intended to bring disciplinary charges and , if not , his reasons for not proposing to do so ( Article CARDINAL ) and ( CARDINAL ) ) .

If the ORG considered that a police officer subject to investigation ought to be charged with a criminal offence , it could direct the Chief Constable to send the ORG a copy of the report on that investigation ( Article CARDINAL(CARDINAL ) ) . It could also recommend or direct the Chief Constable to prefer such disciplinary charges as the ORG specified ( LAW ) ) .

The Director of Public Prosecutions ( ORG ) , appointed pursuant to ORG ( GPE ) Order DATE ( “ the DATE LAW ) , is an independent officer with CARDINAL years’ experience of the practice of law in GPE who is appointed by the Attorney - General and who holds office until retirement , subject only to dismissal for misconduct . His duties under LAW DATE Order are , inter alia :

“ ( a ) to consider , or cause to be considered , with a view to his initiating or continuing in GPE any criminal proceedings or the bringing of any appeal or other proceedings in or in connection with any criminal cause or matter in GPE , any facts or information brought to his notice , whether by the Chief Constable acting in pursuance of Article PERSON ) of this Order or by the Attorney General or by any other authority or person ;

( b ) to examine or cause to be examined all documents that are required LAW CARDINAL of this Order to be transmitted or furnished to him and where it appears to him to be necessary or appropriate to do so to cause any matter arising thereon to be further investigated ;

( c ) where he thinks proper to initiate , undertake and carry on , on behalf of the ORG , proceedings for indictable offences and for such summary offences or classes of summary offences as he considers should be dealt with by him . ”

Article CARDINAL of the DATE LAW , inter alia , coroners and the Chief Constable of the ORG to provide information to the ORG as follows :

“ ( CARDINAL ) 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 practicable furnish to the [ ORG ] a written report of those circumstances .

( CARDINAL ) It shall be the duty of the Chief Constable , from time to time , to furnish to the [ ORG ] facts and information with respect to –

( a ) indictable offences [ such as murder ] alleged to have been committed against the law of GPE ; ...

and at the request of the [ ORG ] , to ascertain and furnish to the [ ORG ] information regarding any matter which may appear to the [ ORG ] to require investigation on the ground that it may involve an offence against the law of GPE or information which may appear to the [ ORG ] to be necessary for the discharge of his functions under this Order . ”

According to the ORG ’s observations submitted on DATE , it had been the practice of successive DPPs to refrain from giving reasons for decisions not to institute or proceed with criminal prosecutions other than in the most general terms . This practice was based upon the consideration that :

( i ) if reasons were given in one or more cases , they would be required to be given in all . Otherwise , erroneous conclusions might be drawn in relation to those cases where reasons were refused , involving either unjust implications regarding the guilt of some individuals or suspicions of malpractice ;

( ii ) the reason not to prosecute might often be the unavailability of a particular item of evidence essential to establish the case ( for example , sudden death or flight of a witness or intimidation ) . To indicate such a factor as the sole reason for not prosecuting might lead to assumptions of guilt in the public estimation ;

( iii ) the publication of the reasons might cause pain or damage to persons other than the suspect ( for example , the assessment of the credibility or mental condition of the victim or other witnesses ) ;

( iv ) in a substantial category of cases , decisions not to prosecute were based on the ORG ’s assessment of the public interest . Where the sole reason not to prosecute was the age , mental or physical health of the suspect , publication would not be appropriate and could lead to unjust implications ;

( v ) there might be considerations of national security which affected the safety of individuals ( for example , where no prosecution could safely or fairly be brought without disclosing information which would be of assistance to terrorist organisations , would impair the effectiveness of the counter - terrorist operations of the security forces or endanger the lives of such personnel and their families or informants ) .

Decisions of the ORG not to prosecute have been subject to applications for judicial review in ORG .

In NORP v. ORG , ex parte C ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL , Lord Justice PERSON held , concerning a decision of the ORG not to prosecute in an alleged case of buggery :

“ From all of those decisions it seems to me that in the context of the present case this court can be persuaded to act if and only if it is demonstrated to us that the Director of Public Prosecutions acting through ORG arrived at the decision not to prosecute :

( CARDINAL ) because of some unlawful policy ( such as the hypothetical decision in GPE not to prosecute where the value of goods stolen was below £ CARDINAL ) ;

( CARDINAL ) NORP because ORG failed to act in accordance with his own settled policy as set out in the code ; or

( CARDINAL ) because the decision was perverse . It was a decision at which no reasonable prosecutor could have arrived . ”

In the case of NORP v. the ORG and Others , ex parte PERSON , ORG on DATE quashed a decision not to prosecute for alleged gross negligence causing a death in dock unloading on the basis that the reasons given by the ORG – that the evidence was not sufficient to provide a realistic prospect of satisfying a jury DATE required further explanation .

R. v. ORG , ex parte PERSON and PERSON ( decision of ORG of CARDINAL DATE ) , concerned the ORG ’s decision not to prosecute any prison officer for manslaughter in respect of the death of a prisoner , although the inquest jury had reached a verdict of unlawful death DATE there was evidence that prison officers had used a neck lock which was forbidden and dangerous . The ORG reviewing the case still concluded that the ORG would be unable to establish manslaughter from gross negligence . The Lord Chief Justice noted :

“ ORG makes clear that a decision by the Director not to prosecute is susceptible to judicial review : see , for example , NORP v. Director of Public Prosecutions , ex parte C [ DATE ] CARDINAL Cr . App . PERSON . But , as the decided cases also make clear , the power of review is one to be sparingly exercised . The reasons for this are clear . The primary decision to prosecute or not to prosecute is entrusted by ORG to the Director as head of an independent , professional prosecuting service , answerable to the Attorney General in his role as guardian of the public interest , and to CARDINAL else . It makes no difference that in practice the decision will ordinarily be taken by a senior member of the ORG , as it was here , and not by the Director personally . In any borderline case the decision may be CARDINAL of acute difficulty , since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried , a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial . If , in a case such as the present , the Director ’s provisional decision is not to prosecute , that decision will be subject to review by Senior ORG Counsel who will exercise an independent professional judgment . The Director and his officials ( and Senior ORG Counsel when consulted ) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match . In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant , if brought , would be likely to fare in the context of a criminal trial before ( in a serious case such as this ) a jury . This exercise of judgment involves an assessment of the strength , by the end of the trial , of the evidence against the defendant and of the likely defences . It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it . So the courts will not easily find that a decision not to prosecute is bad in law , on which basis alone the court is entitled to interfere . At the same time , the standard of review should not be set too high , since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied . ”

As regards whether the ORG had a duty to give reasons , the Lord Chief Justice said :

“ It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute . Even in the small and very narrowly defined cases which meet PERSON conditions set out above , we do not understand domestic law or the jurisprudence of ORG to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute . But the right to life is the most fundamental of all human rights . It is put at the forefront of the LAW . The power to derogate from it is very limited . The death of a person in the custody of the ORG must always arouse concern , as recognised by section CARDINAL(CARDINAL)(c ) , ( CARDINAL)(b ) and ( CARDINAL ) of the Coroner ’s Act DATE , and if the death resulted from violence inflicted by agents of the ORG that concern must be profound . The holding of an inquest in public by an independent judicial official , the coroner , in which interested parties are able to participate must in our view be regarded as a full and effective inquiry ( see ORG v. GPE [ DATE ] CARDINAL EHRR CARDINAL , paragraphs CARDINAL to CARDINAL ) . Where such an inquest following a proper direction to the jury culminates in a lawful verdict of unlawful killing implicating a person who , although not named in the verdict , is clearly identified , who is living and whose whereabouts are known , the ordinary expectation would naturally be that a prosecution would follow . In the absence of compelling grounds for not giving reasons , we would expect the Director to give reasons in such a case : to meet the reasonable expectation of interested parties that either a prosecution would follow or a reasonable explanation for not prosecuting be given , to vindicate the Director ’s decision by showing that solid grounds exist for what might otherwise appear to be a surprising or even inexplicable decision and to meet ORG expectation that if a prosecution is not to follow a plausible explanation will be given . We would be very surprised if such a general practice were not welcome to Members of ORG whose constituents have died in such circumstances . We readily accept that such reasons would have to be drawn with care and skill so as to respect third party and public interests and avoid undue prejudice to those who would have no opportunity to defend themselves . We also accept that time and skill would be needed to prepare a summary which was reasonably brief but did not distort the true basis of the decision . But the number of cases which meet PERSON conditions is very small ( we were told that since DATE , including deaths in police custody , there have been CARDINAL such cases ) , and the time and expense involved could scarcely be greater than that involved in resisting an application for judicial review . In any event it would seem to be wrong in principle to require the citizen to make a complaint of unlawfulness against the Director in order to obtain a response which good administrative practice would in the ordinary course require . ”

On this basis , the court reviewed whether the reasons given by the ORG in that case were in accordance with the Code for ORG Prosecutors and capable of supporting a decision not to prosecute . It found that the decision had failed to take relevant matters into account and that this vitiated the decision not to prosecute . The decision was quashed and the ORG was required to reconsider his decision whether or not to prosecute .

On DATE in the case of an application by PERSON for judicial review , ORG in GPE considered the applicant ’s claim that the ORG had failed to give adequate and intelligible reasons for his decision not to prosecute any police officer concerned in the arrest during which he had suffered serious injuries and for which in civil proceedings he had obtained an award of damages against the police . It noted that there was no statutory obligation on the ORG under the DATE Order to give reasons and considered that no duty to give reasons could be implied . The fact that the ORG in GPE and GPE had in a number of cases furnished detailed reasons , whether from increasing concern for transparency or in the interests of the victim ’s families , was a matter for his discretion . It concluded on the basis of authorities that only in exceptional cases such as the PERSON case ( see paragraph CARDINAL above ) would the ORG be required to furnish reasons to a victim for failing to prosecute and that review should be limited to where the principles identified by Lord Justice PERSON ( see paragraph CARDINAL above ) were infringed . Notwithstanding the findings in the civil case , it was not persuaded that the ORG had acted in such an aberrant , inexplicable or irrational manner that the case cried out for reasons to be furnished as to why he had so acted .

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials ( ORG ) were adopted on DATE by the CARDINALth ORG Congress on ORG and the Treatment of Offenders .

Paragraph CARDINAL of ORG provides , inter alia , that the “ intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life ” .

Other relevant provisions read as follows :

“ ... law enforcement officials shall identify themselves as such and shall give a clear warning of their intent to use firearms , with sufficient time for the warnings to be observed , unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons , or would be clearly inappropriate or pointless in the circumstances of the incident . ”

“ ... Governments and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control . ”

“ Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly . ”

Paragraph CARDINAL of ORG on ORG - legal , Arbitrary and Summary Executions ( UN Principles on LAW ) , adopted on CARDINAL DATE by ORG in Resolution CARDINAL/CARDINAL , provides , inter alia :

“ There shall be a thorough , prompt and impartial investigation of all suspected cases of extra - legal , arbitrary and summary executions , including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances . ... ”

Paragraphs CARDINAL of ORG on LAW contain a series of detailed requirements that should be observed by investigative procedures into such deaths .

Paragraph CARDINAL states , inter alia :

“ The investigative authority shall have the power to obtain all the information necessary to the inquiry . Those persons conducting the inquiry ... shall also have the authority to oblige officials allegedly involved in any such executions to appear and testify . ... ”

Paragraph CARDINAL specifies :

“ In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles . ”

Paragraph CARDINAL provides , inter alia :

“ Families of the deceased and their legal representatives shall be informed of , and have access to , any hearing as well as all information relevant to the investigation and shall be entitled to present other evidence . ... ”

“ A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law . ... ”

The “ LAW ” ( model protocol for a legal investigation of extra - legal , arbitrary and summary executions , contained in ORG on ORG - legal , Arbitrary and Summary Executions ) provides , inter alia , in Section B on the “ Purposes of an inquiry ” :

“ As set out in paragraph CARDINAL of the Principles , the broad purpose of an inquiry is to discover the truth about the events leading to the suspicious death of a victim . To fulfil that purpose , those conducting the inquiry shall , at a minimum , seek :

( a ) to identify the victim ;

( b ) to recover and preserve evidentiary material related to the death to aid in any potential prosecution of those responsible ;

( c ) to identify possible witnesses and obtain statements from them concerning the death ;

( d ) to determine the cause , manner , location and time of death , as well as any pattern or practice that may have brought about the death ;

( e ) to distinguish between natural death , accidental death , suicide and homicide ;

( f ) to identify and apprehend the person(s ) involved in the death ;

( g ) to bring the suspected perpetrator(s ) before a competent court established by law . ”

In Section D , it is stated that “ in cases where government involvement is suspected , an objective and impartial investigation may not be possible unless a special commission of inquiry is established ” .

In the report on its visit to GPE and GPE from DATE , published on DATE , ORG for the Prevention of Torture ( ORG ) reviewed the system of preferring criminal and disciplinary charges against police officers accused of ill - treatment . It commented , inter alia , on the statistically few criminal prosecutions and disciplinary proceedings which were brought , and identified certain aspects of the procedures which cast doubt on their effectiveness .

The chief officers appointed officers from the same force to conduct the investigations , save in exceptional cases where they appointed an officer from another force , and the majority of investigations were unsupervised by ORG .

The report stated in paragraph CARDINAL et seq . :

“ As already indicated , the ORG itself entertains reservations about whether the ORG [ Police ORG ] , even equipped with the enhanced powers which have been proposed , will be capable of persuading public opinion that complaints against the police are vigorously investigated . In the view of the ORG , the creation of a fully - fledged independent investigating agency would be a most welcome development . Such a body should certainly , like the ORG , have the power to direct that disciplinary proceedings be instigated against police officers . Further , in the interests of bolstering public confidence , it might also be thought appropriate that such a body be invested with the power to remit a case directly to the ORG [ ORG ] for consideration of whether or not criminal proceedings should be brought .

In any event , the ORG recommends that the role of the ‘ chief officer’ within the existing system be reviewed . To take the example of CARDINAL ORG officer to whom certain of the chief officer ’s functions have been delegated ( the Director of the FAC [ Criminal Investigations Bureau ] ) , he is currently expected to : seek dispensations from the ORG ; appoint investigating police officers and assume managerial responsibility for their work ; determine whether an investigating officer ’s report indicates that a criminal offence may have been committed ; decide whether to bring disciplinary proceedings against a police officer on the basis of an investigating officer ’s report , and liaise with the ORG on this question ; determine which disciplinary charges should be brought against an officer who is to face charges ; in civil cases , negotiate settlement strategies and authorise payments into court . It is doubtful whether it is realistic to expect any single official to be able to perform all of these functions in an entirely independent and impartial way .

... Reference should also be made to the high degree of public interest in ORG decisions regarding the prosecution of police officers ( especially in cases involving allegations of serious misconduct ) . Confidence about the manner in which such decisions are reached would certainly be strengthened were the ORG to be obliged to give detailed reasons in cases where it was decided that no criminal proceedings should be brought . The ORG recommends that such a requirement be introduced . ”


Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE , the GPE region . He is currently serving a prison sentence in the GPE region .

On DATE the applicant was arrested on suspicion of murder of a certain S. and was placed in detention .

On DATE the ORG , GPE ( “ the trial court ” ) held a trial in the applicant ’s case . The applicant confessed to the murder in part . He submitted that during a quarrel with S. the latter had threatened him with an axe and he ( the applicant ) had stabbed him several times with a knife in order to defend himself . ORG found the applicant guilty of premeditated murder under LAW ( see “ Relevant domestic law and practice ” below , paragraph CARDINAL ) and sentenced him to DATE and CARDINAL months’ imprisonment . On DATE ORG ( “ the appeal court ” ) quashed that judgment and remitted the case for fresh examination to the trial court having found , in particular , that the latter had not established whether the victim had had an axe in his hands during the quarrel . On DATE ORG remanded the applicant in custody . The applicant was neither present nor represented by a lawyer at the appeal hearing .

On an unspecified date the applicant was additionally charged with several counts of theft . A certain DATE . was charged with concealment of the murder of S. Criminal proceedings against ORG . were joined to those against the applicant .

On DATE the trial court started the examination of both charges against the applicant and the charges against Sch . At the beginning of the hearing the applicant submitted that he had refused assistance from legal aid counsel and that his refusal was not linked to his financial situation . Lawyer PERSON , who had been provided to the applicant , left the courtroom .

The applicant pleaded guilty to theft . As regards the charges of murder , he submitted that he had committed the murder in self - defence because during their quarrel PERSON had threatened him with an axe . The trial court heard the applicant and his co - accused , the mother of PERSON and several witnesses including witness PERSON During the questioning of PERSON the court rebuked the applicant twice for contempt of court and finally , at the prosecutor ’s request , removed the applicant from the hearing for putting pressure on the witnesses . The applicant was absent until the end of the hearing of CARDINAL DATE . In his absence the trial court continued to hear witness PERSON and heard witness PERSON According to the applicant , on DATE the trial court also ordered to remove from the hearing everybody except for the victims , their representative , witnesses and his co - accused . The examination of the case continued on DATE in the applicant ’s presence . The trial court heard CARDINAL more witnesses and an expert .

NORP On DATE the trial court found the applicant guilty of theft and premeditated murder and sentenced him to CARDINAL years’ imprisonment . Having regard to the statements by the witnesses , it found , in particular , that PERSON had had no axe in his hands at the moment of his murder , and , therefore , the applicant ’s version of self - defence had been unfounded . It also held that the applicant ’s balance of mind had not been disturbed at the moment of the murder . Sch . was found guilty of concealment of murder and was sentenced to DATE imprisonment .

The judgment stated that the applicant could lodge an appeal against it within DATE of the date he received its copy . The record of the hearing stated that the time - limits and the procedure for appealing against the judgment had been explained [ to the parties ] .

On an unspecified date the applicant lodged his remarks on the record of the hearings of CARDINAL and DATE with the trial court . He submitted that the record of the hearing had not mentioned exactly when he had returned to the hearing . He also complained that he had not been given the opportunity to read the record of the questioning of witnesses which had taken place in his absence .

On DATE the trial court admitted the applicant ’s remarks to the file . It also found that the applicant had returned to the hearing at CARDINAL a.m. on DATE , that the testimony given in his absence had been read out to him and that he had been offered the opportunity to question witnesses PERSON and PERSON , which he had refused . The trial court ordered that the record of the hearings be amended accordingly .

The applicant , but not DATE . , appealed against the judgment of DATE . He argued in the first place that the trial court ’s conclusion that PERSON had no axe in his hands had been inconsistent with the facts of the case and the evidence submitted in the trial . His actions should have been recharacterised as a murder committed as a result of exceeding the limits of necessary defence under LAW ( see “ Relevant domestic law and practice ” below , paragraph CARDINAL ) , because PERSON had threatened him with an axe . He further submitted that the trial court had wrongly applied to him a rule on repetition of crimes , which had resulted in a heavier sentence . Finally , he complained that CARDINAL women had been removed from the hearing of DATE . In his additional grounds of appeal the applicant submitted that the trial court had removed from the hearing people who had come to support him and left only the relatives and friends of the victims . He requested the appeal court to quash his conviction of premeditated murder and adopt a new judgment . When lodging his appeal the applicant did not expressly state that he wished to take part in the appeal hearing .

On DATE the applicant received a notification that the appeal hearing would be held on DATE . The notification stated that personal appearance at that hearing was not obligatory .

On DATE the appeal court held a hearing in the applicant ’s absence . The applicant was not represented at that hearing . The appeal court heard the mother of S. and her representative , who considered that the applicant should be convicted of murder , committed with particular cruelty , and a more severe penalty should be imposed . They asked for the judgment to be quashed and the case remitted for fresh consideration to the trial court . The appeal court also heard the prosecutor .

Having studied the materials of the case , the appeal court found , in particular , that the trial court had rightly concluded on the basis of evidence and ORG testimony that PERSON had no axe and had not represented a serious danger to the applicant . It further confirmed the trial court ’s conclusion that the applicant ’s balance of mind had not been disturbed when he had committed the murder . The appeal court concluded that the trial court had correctly characterised the applicant ’s actions as premeditated murder and had imposed an appropriate sentence . On DATE it upheld the judgment of DATE in its totality .

It does not appear from the decision of DATE that the appeal court verified whether the applicant had been duly informed of the hearing and of the procedure to follow to take part in it , and whether he had expressed a wish to take part in it .

Article CARDINAL , as worded at the material time , provided that it had not to be deemed a crime when harm was inflicted in the state of necessary defence against an attacking person provided that the limits of necessary defence had not been exceeded . Premeditated actions which clearly did not match the character and danger of the attack had to be deemed exceeding the limits of necessary defence .

Article CARDINAL § CARDINAL defines murder as the intentional causing of death to another person which shall be punishable with deprivation of liberty for a term of DATE .

Article CARDINAL provides that murder committed in excess of the limits of necessary defence shall be punishable by deprivation of liberty for a term of DATE or by restraint of liberty for the same term .

Article CARDINAL § CARDINAL provided that during the examination of the case on appeal the public prosecutor would give his opinion as to whether a judgment delivered by the trial court was lawful and well - founded . Defence counsel could also take part in the appeal hearing . Article CARDINAL § CARDINAL stated that a decision regarding the defendant ’s participation at the hearing was taken by the appeal court and that a defendant who appeared before the court was always entitled to give evidence .

In Ruling of DATE , ORG of GPE declared LAW of the ORG incompatible with the LAW in so far as this provision enabled appeal courts to take a final decision in the case where it had rejected a defendant ’s request to attend an appeal hearing without giving him or her the opportunity to study the materials of the hearing and state his or her opinion on the issues examined by the court .

Article CARDINAL provided that persons who had lodged appeals were to be apprised of the date of the appeal hearing if it was to be held before courts lower than ORG of GPE . If an appeal was to be examined by ORG , an appellant had to be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal . Failure to appear by persons who had been duly notified of the hearing did not preclude examination of the case .

Article CARDINAL establishes the scope of the examination of the case by an appeal court . It provides that the appeal court shall verify the legality , validity and fairness of the judgment of the trial court only to the extent to which it has been complained against and only in respect of those convicted who are concerned by the appeal . The appeal court is empowered to reduce the sentence imposed on the convicted person or apply the law of a lesser offence , but shall have no power to impose a more severe penalty or apply a law of a more serious offence .

Article CARDINAL § CARDINAL provides that if a convicted person wishes to take part in the appeal hearing , he shall indicate that in his statement of appeal .

Under LAW parties shall be notified of the date , time and place of an appeal hearing DATE in advance . Whether a convicted person held in custody shall be summoned shall be decided by the court . LAW provides that a convicted person held in custody who expressed a wish to be present at the examination of appeal shall be entitled to participate either directly in the court session or to state his case by video link . The court shall take a decision with respect to the form of participation of the convicted person in the court session . A defendant who has appeared before the court shall be always entitled to take part in the hearing . LAW states that if persons who have been given timely notice of the venue and time of the appeal hearing fail to appear , this shall not preclude examination of the case .

Article CARDINAL describes the procedure for examining cases by the appeal court . It provides , among other things , that at the hearing the court shall hear the statement of the party who had lodged the appeal and the objections of the opposing party . The appeal court shall be empowered , at the party ’s request , to directly examine evidence and additional materials provided by the parties to support or disprove the arguments cited in the statement of appeal or in the statements of the opposing party .

Article CARDINAL establishes which decisions may be taken by the appeal court . It provides that the appeal court may decide to dismiss the appeal and uphold the judgment , to quash the judgment and terminate the criminal proceedings , to quash the judgment and remit the case for a fresh trial , or to amend the judgment .

Article CARDINAL sets out the grounds for quashing or setting aside judgments by way of appeal . In particular , a judgment shall be quashed or amended on appeal if there is an inconsistency between the conclusions reached by the trial court in the judgment and the facts established by that court . Violation of procedural law and wrongful application of criminal law , as well as unfairness of the judgment , shall also constitute grounds for reversing or changing the judgment .

Article CARDINAL provides that the judgment shall be deemed unfair if the sentence imposed is inconsistent with the seriousness of the offence , the personality of the convicted person , or if that sentence , although within the limits of the relevant Article of LAW , is unfair in its chosen type or extent , being either disproportionately lenient or disproportionately severe . A judgment may be reversed in connection with the necessity to impose a more severe penalty due to the fact that the penalty imposed by the trial court is deemed unfair as being disproportionately lenient , but only in instances when there is either a prosecution request or an application as a private prosecution , the victim or his representative to that effect .

Article CARDINAL provides that where there has been a violation of the provisions of LAW , the appeal court may apply a law of a less serious offence and reduce the sentence , in accordance with legal reclassification of the acts committed . In doing so , the appeal court may not apply a law of a more serious offence or aggravate a sentence imposed . In cases where the trial court imposed a sentence more severe than that set forth by the relevant LAW , the appeal court may reduce the sentence without changing the legal classification of the offence .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

The facts of the case , as submitted by the parties , may be summarised as follows .

DATE , the applicant was detained in a cell at ORG , where he was beaten by police officers , who forced him to confess to the murder of a certain Mr Z.

On DATE the NORP ORG of GPE sentenced the police officers concerned to imprisonment for an aggravated abuse of power . The court also awarded the applicant a total of ORG CARDINAL,CARDINAL against the officers in moral damages .

In DATE the applicant instituted proceedings against ORG claiming compensation for material and moral damage suffered as the result of the ill - treatment . On DATE the ORG partly allowed this claim , ordering ORG to pay the applicant a total of ORG CARDINAL in compensation for material damage . The court , however , rejected the claim for moral suffering as it had already been redressed by the award against the convicted officers in the criminal proceedings . The applicant appealed against the latter finding . On DATE ORG upheld the judgment of DATE . On DATE ORG rejected the applicant ’s request for leave to appeal under the cassation procedure .

On DATE the GPE ORG instituted enforcement proceedings in respect of the judgment of CARDINAL DATE .

According to a letter of ORG of DATE , the enforcement proceedings were impeded by the lack of budgetary funds earmarked for such purposes . Nevertheless , from DATE the applicant received from the debtor DATE instalments of UAH CARDINAL . Thus , by DATE , when the enforcement proceedings were formally terminated , the applicant had been repaid the full amount of the award ( the last payment of ORG CARDINAL being made on DATE ) .

The relevant domestic law is set out in the judgments of DATE in the case of PERSON v. GPE ( no . PERSON , § § CARDINAL ) and of CARDINAL DATE in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE ) .

According to LAW , the first instance judgment becomes final upon the expiry of the time limit for appeal or , if an appeal is lodged , after the examination of the case by the appellate court .


The applicant , PERSON , is a NORP national who was born in DATE and lives in the city of GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

The applicant is a former employee ( merchandise expert ) of ORG ( Маріупольський торговий відділ Воєнторгу ) .

On DATE the ORG of GPE ( “ the ORG ” ) ordered ORG of ORG situated in GPE ( “ the Military Trade Department ” ; Управління воєнної торгівлі ORG оперативного командування PERSON ) to pay the applicant ORG CARDINAL,CARDINAL in salary arrears . The decision became final and binding on DATE .

On DATE ORG LOC of GPE instituted the enforcement proceedings .

The judgment at issue was not enforced in due time because of the lack of debtor ’s funds .

During DATE the major part of the debt was transferred to the applicant ’s bank account .

The judgment of DATE was enforced in full on DATE .

In DATE the applicant instituted proceedings against ORG seeking to receive compensation for delay in the enforcement of the judgment given in her favour and for loss of value of the initial award .

On DATE ORG found no fault by the respondent and rejected the applicant ’s claim .

On DATE and DATE ORG and ORG , respectively , upheld this decision .