ECtHR Decides N.I. Collusion Cases

On November 27th the European Court of Human Rights found violations of Article 2 of the ECHR (right to life) on the part of the United Kingdom in the cases of McGrath v United Kingdom, McCartney v United Kingdom and Brecknell v United Kingdom. The leading judgment is that handed down in Brecknell.

Brecknell concerned the attack on Donnelly’s Bar in 1975 in which three people were killed and six seriously injured. There had been some initial investigation but the investigation was reignited in 1993 when John Weir was released from prison.

John Weir was a police officer who was convicted of murder in 1980 and released in 1993. On his release Weir alleged RUC (Royal Ulster Constabulary) collusion with loyalist paramilitaries, and provided information relating to a number of incidents including the attack on Donnelly’s Bar. This information was investigated by both the Irish police and the Royal Ulster Constabulary (RUC) and, in connection with the RUC investigation, two internal reports were prepared (one in 2001 and one in 2003). In 2004 a Serious Crime Review Team investigation into the Weir allegations began (the PSNI now having replaced the RUC) and the Independent Police Ombudsman for Northern Ireland became involved.

The families of the deceased persons claimed that the investigation had been inadequate and engaged in judicial review at the domestic level that was, ultimately, unsuccessful. Before the European Court of Human Rights the applicants claimed that the investigation into Weir’s allegations had been inadequate particularly since the Irish police had found him to be a credible witness but, on the same evidence, the PSNI had found him to be not credible. According to the complaint Article 2 results in a positive obligation to conduct an independent investigation into Weir’s allegations whereas the Government argued that, even if the allegations did trigger an obligation to investigate (which was denied), the investigation conducted was in compliance with Article 2.

In its judgment the ECtHR reiterated its well-established principle that there is an Article 2 obligation to carry out an effective investigation into unlawful or suspicious deaths and that this investigation ought to be prompt, independent and effective. It is not the case, according to the Court, that every new allegation or piece of information would trigger this positive obligation but “where there is a plausible, or credible, allegation, piece of evidence or item of information relevant to the identification, and eventual prosecution or punishment of the perpetrator of an unlawful killing, the authorities are under an obligation to take further investigative measures” (para. 71). In this case Weir’s allegations were serious and were prima facie plausible, therefore an obligation to investigate arose.

The initial investigation, which was carried out by the RUC itself, was found by the ECtHR not to be sufficiently independent and therefore failed to comply with Article 2 at the early stages at least. As a result, there was a violation of Article 2. it does appear, however, that the later stages of the investigation operated by a SCRT and involving the Ombudsman would satisfy the requirements of Article 2, thus highlighting (once more) the fundamentality of the change in policing in Northern Ireland from the RUC to the PSNI further to the Patten plan.

The same conclusion was reached on similar facts and in relation to further allegations by John Weir in both McGrath and McCartney.