FOURTH SECTION
Application no. 58559/09
Collette and Michael HEMSWORTH
against the United Kingdom
STATEMENT OF FACTS

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

- Caraher v. the United Kingdom (dec.), no. 24520/94, ECHR 2000 I; Hay v. the United Kingdom (dec.), 41894/98; McKerr v. the United Kingdom, no. 28883/95, § 19-23, ECHR 2001 III as well as the Hugh Jordan, Shanaghan, Kelly and Others judgments of the same date at §§ 110-115, 93-99 and 99-110, respectively; McShane v. the United Kingdom, no. 43290/98, §§ 99-105, 28 May 2002; and Bailey v. the United Kingdom, (dec.) no. 39953/07, 19 January 2010; and 
- Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 55-56, 20 December 2007, Beganović v. Croatia, no. 46423/06, § 56, ECHR 2009¬...; Fadime and Turan Karabulut v. Turkey, no. 23872/04, §§ 31-48, 27 May 2010; Kopylov v. Russia, no. 3933/04, § 121, 29 July 2010; Gäfgen v. Germany [GC], no. 22978/05, § 119, ECHR 2010¬...; and Darraj v. France, no. 34588/07, §§ 22-53, 4 November 2010.

1(b)  Has there been a violation of the substantive aspect of the right to life guaranteed by Article 2 of the Convention as regards the death of John Hemsworth (McCann and Others v. the United Kingdom, 27 September 1995, § 194, Series A no. 324)?

2(a)  The parties are invited to comment on the bearing which the judgment of the Supreme Court in McCaughey and Another, Re Application for Judicial Review ([2011] UKSC 20) and the jury verdict of May 2011 may have in respect of the procedural aspects of the applicant’s complaint under Article 2?

(b)  Have the procedural protections guaranteed by Article 2 of the Convention been complied with in the present case (the above-cited judgments in the cases of McKerr, Hugh Jordan, Shanaghan and of Kelly and Others as well as Finucane v. the United Kingdom, no. 29178/95, ECHR 2003 VIII and McShane v. the United Kingdom, cited above)?
The parties are requested to address the issues of:
- the effectiveness of the investigation;
-the independence of the investigation and, notably, the independence of the investigating officers from those officers allegedly responsible for the death;
- the adequacy of the public scrutiny of the investigation; and in particular
- the delay in holding the Inquest.

3.  Has there been a violation of Article 13 of the Convention as regards the rights guaranteed by Article 2 of the Convention?