COMMITTEE OF MINISTERS MEETING JUNE 2024McKerr/Finucane Cases Decision: postpone further examination until 2025
1501st meeting, 11-13 June 2024 (DH)
H46-40 McKerr group v. the United Kingdom (Application No. 28883/95)
Supervision of the execution of the European Court’s judgments
Reference documents
CM/Notes/1501/H46-40
Decisions
The Deputies
1. recalling that these cases concern procedural violations of Article 2 of the European Convention due to various shortcomings in the investigations into the death of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel;
As regards individual measures
2. reiterated their increasingly profound concern that five years have passed since the Supreme Court judgment finding that there has still not been an Article 2-compliant inquiry into Mr Finucane’s death in 1989 and that, while the judgment in the Court of Appeal is yet to be handed down, there is still no clear indication of how the Secretary of State proposes to proceed; strongly exhorted the authorities again to provide their full and clear response to the Supreme Court judgment, including information about the possible impact of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (‘the Act’) and a decision on the measures they intend to take as soon as possible;
3. reiterated their deep regret that the inquests in the cases of McKerr and Kelly and Others did not complete before 1 May 2024, the cut-off date in the Act; urged the authorities to provide further clarification as to what steps are now underway to ensure the necessary individual measures are taken and further delays are avoided, whilst noting with interest that the ICRIR has recently published proposals to progress advanced stage inquests via enhanced inquisitorial proceedings;
As regards general measures
4. recalling their decisions adopted at their examinations of the cases at the 1443rd meeting
(September 2022) (DH), the 1451st meeting (December 2022) (DH), the 1459th meeting (March 2023) (DH), the interim resolution adopted at their examination at the 1468th meeting (June 2023) (DH) together with the decision at the 1475th meeting (September 2023) (DH);
5. recalling their previous concerns about the Act’s compatibility with the European Convention, including in particular the proposed conditional immunity scheme which risks breaching obligations under Article 2 of the European Convention to prosecute and punish serious grave breaches of human rights;
6. noting the developments since their last examination of the group, including the ICRIR’s express commitment to ensuring that it conducts its work in compliance with the European Convention and the fact that the domestic courts are continuing to examine issues related to the Act, including compliance with Articles 2, 3, 6 and 8 of, and Article 1 of Protocol No.1 to, the European Convention, and the functioning of the ICRIR, having found in the first instance that the ICRIR has the necessary and structural independence, that the provisions of the Act leave sufficient scope for the ICRIR to conduct effective investigations and that the disclosure provisions in the Act are compliant with the European Convention and an improvement on the coronial system, but that the provisions relating to immunity, the retrospective barring of previously ongoing Troubles-related civil actions, the exclusion of evidence in civil proceedings, and interim custody orders, are not compatible with the Convention; expressed hope that these proceedings will be concluded expeditiously taking full account of the European Convention, the relevant case-law of the European Court and this Committee’s decisions;
7. noting that the Government of Ireland has lodged an inter-state application at the European Court against the United Kingdom concerning the Act in which similar issues are also under examination;
8. decided to resume the examination of this group of cases at one of their meetings in 2025, taking account of developments in the meantime.
END
https://search.coe.int/cm/eng?i=0900001680afd185
‘NOTES’ OR SECRETARIAT’S RECOMMENDATIONS
1501st meeting, 11-13 June 2024 (DH)
Human rights
H46-40 McKerr group v. the United Kingdom (Application No. 28883/95)
Supervision of the execution of the European Court’s judgments
Reference documents
DH-DD(2024)550, DH-DD(2024)364, DH-DD(2023)1419, CM/Del/Dec(2023)1475/H46-44
Application Case Judgment of Final on Indicator for the classification
28883/95 MCKERR 04/05/2001 04/08/2001 Structural and/or complex problems
30054/96 KELLY AND OTHERS 04/05/2001 04/08/2001
29178/95 FINUCANE 01/07/2003 01/10/2003
Case description
These cases concern investigations into the deaths of the applicants’ next-of-kin in Northern Ireland in the 1980s and 1990s, either during security force operations or in circumstances giving rise to suspicion of collusion in their deaths by security force personnel.
The European Court found various combinations of the following shortcomings in the investigations into the deaths: lack of independence of investigating police officers; lack of public scrutiny or information to victims' families about the reasons for decisions not to prosecute; defects in the police investigations; limitations on the role and scope of the inquest procedure; absence of legal aid for the representation of the victims’ families; and delays in inquest proceedings (procedural violations of Article 2).
Status of execution
The Committee last examined this group of cases at its 1475th meeting (DH) in September 2023. The United Kingdom authorities provided information on 2 April 2024 (DH-DD(2024)364), setting out the developments since then and enclosing an update prepared by the Independent Commission for Reconciliation and Information Recovery (ICRIR). That information can be summarised as follows.
Individual measures
The Finucane case
At its September 2023 DH meeting, the Committee reiterated its profound concern that over four years had passed since the Supreme Court judgment finding that there had still not been an Article 2-compliant inquiry into Mr Finucane’s death in 1989 and that there was still no clear indication of how the Secretary of State proposes to proceed. It exhorted the authorities again to provide their full and clear response to the Supreme Court judgment, including a decision on the measures they intend to take as soon as possible.
In their submissions, the authorities recall that the government has appealed against the High Court of Northern Ireland’s judgment of 21 December 2022 (which, inter alia, declared that there had still not been an Article 2-compliant inquiry into Mr Finucane’s death) and that the hearing concluded on 19 September 2023. A judgment from the Court of Appeal was expected in the week commencing 8 April 2024, but is, at the time of drafting these notes, yet to be delivered. The government’s position is that a final decision has not yet been taken and that all necessary steps will be taken to ensure compliance with the decisions of the domestic courts and the European Court in due course.
Other individual measures
At its September 2023 DH meeting, the Committee reiterated their profound regret that the inquests in the outstanding cases[1] of McKerr and Kelly and Others had still not been completed, nor been listed for hearing. It called upon the authorities to take all measures to expedite proceedings so that they could be concluded before 1 May 2024 when they would have to be terminated and then potentially transferred to the ICRIR, risking further delays. The authorities have not provided any updated information as regards these two cases. Nevertheless, it appears that the effect of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (“the Act”), means that those inquests have been closed (see under general measures).
Rule 9.1. submission
On 3 May 2024, the applicants in the case of Kelly and Others provided a submission setting out their deep concerns about the detrimental impact of the Act which they argue will prevent them from accessing the truth about what happened to their relatives and from seeking justice. They confirm that the pending inquest into the death of their next-of-kin was terminated on 1 May 2024, along with the other outstanding inquests.
General measures
Previous examinations of the group of cases by the Committee of Ministers
For a detailed account of the execution process taken since the beginning of the supervision process, see the Notes prepared for the 1398th meeting (March 2021) (DH), the 1419th meeting (30 November-
2 December 2021) (DH), the 1443rd meeting (September 2022) (DH) the 1468th meeting (June 2023) (DH) and the 1475th meeting (September 2023) (DH).[2]
Following the adoption of an interim resolution at its June 2023 meeting,[3] the Committee, at its last examination, in September 2023, invited the Chair of the Committee of Ministers to send a letter to the United Kingdom authorities in order to raise the concerns raised in its decision.[4] In that decision, the Committee, inter alia, had recalled its concerns about the Northern Ireland Troubles (Legacy & Reconciliation) Bill’s (the Bill) compatibility with the European Convention and its repeated calls upon the authorities to sufficiently amend the Bill, if progressed and ultimately adopted, to allay those concerns.
Whilst noting with interest certain amendments to the Bill to strengthen victim participation and public scrutiny of the work of the ICRIR, the Committee also noted that a number of issues relating to independence, disclosure and the initiation of reviews remained uncertain and urged the authorities to provide additional information on the planned practical and other measures to ensure that those issues were fully addressed.
It deeply regretted that, while the cut-off date had been extended to May 2024, the proposal to terminate pending inquests remained in the Bill and expressed profound concern that, if effective handover measures were not put in place, this may lead to further delay and distress for individuals, including some of the individual applicants in this group. It urged the authorities to take additional practical measures to ensure that all of the preparatory work done on those pending cases was not lost in any transfer to the ICRIR.
Furthermore, the Committee underlined again the importance for the success of any new investigative body, particularly if aimed at achieving truth and reconciliation, of gaining the confidence of victims, families of victims and potential witnesses.
While acknowledging the steps taken by the authorities in an attempt to engage with victims and stakeholders over the past twelve months, it noted with deep regret that despite those efforts, support for the ICRIR remains minimal. It therefore strongly encouraged the authorities to take all necessary additional measures to garner public trust and the confidence of victims, their families and all stakeholders.
Finally, the Committee reiterated its serious concern about the proposed conditional immunity scheme which risks breaching obligations under Article 2 of the European Convention to prosecute and punish serious grave breaches of human rights, and seriously undermining the ICRIR’s capacity to carry out effective investigations within the meaning of Article 2. It deeply regretted therefore the authorities’ decision not to support the House of Lords’ amendment to remove the scheme from the Bill, and its subsequent rejection, and strongly urged the authorities to consider repealing the immunity provisions.
Letter from the Chair of the Committee
On 25 September 2023,[5] the Minister of Foreign Affairs of Latvia, then Chair of the Committee of Ministers, wrote to the Minister of Foreign Affairs of the United Kingdom and conveyed the Committee’s concerns. The Chair of the Committee expressed his trust that the United Kingdom authorities would swiftly take the necessary action to secure the full and effective execution of the judgments.
By a letter dated 6 November 2023, the Minister of Foreign Affairs of the United Kingdom replied, underlining that the United Kingdom Government took its obligations under the European Convention very seriously and had adopted significant amendments to the legislation as it progressed through Parliament, including to address matters of Convention compliance relating to independence. He also emphasised that public bodies will be under a legal duty to provide as full disclosure to the ICRIR as it may reasonably require. With respect to the termination of inquests, he noted that it would be for the ICRIR to work with coroners to ensure that any handover process was as efficient as possible, and the preparatory work previously done was not lost. He indicated that the Government considered that the conditional immunity provisions were necessary to facilitate the recovery of information. Finally, he underlined that the ICRIR needs time to establish itself and its processes.
Other developments since the last examination
On 18 September 2023, shortly before the last examination by the Committee of Ministers, the Bill was adopted and became law as the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (the Act). Certain provisions were commenced on 18 November 2023 and others on 1 December 2023.
In summary, the Act creates the ICRIR as the sole body responsible for investigations into deaths and other harmful conduct during the Troubles. The Act therefore brings to an end all investigations of/actions related to Troubles-related incidents which were underway via police investigations, the Police Ombudsman of Northern Ireland (PONI), and the inquest system.[6] The ICRIR can only carry out reviews referred to it within five years and must grant immunity to those involved in criminality in certain defined circumstances. The ICRIR is able to refer cases to the prosecution service (in Great Britain or Northern Ireland) where individuals have not been granted immunity and there is sufficient evidence of an offence causing death/serious injury. The ICRIR must provide a report at the end of any of its reviews and a historical record of other deaths that occurred during the Troubles.
In their submissions, the authorities provide information about the implementation of the Act as well as ongoing legal challenges.
Implementation of the Act
The authorities underline that significant progress has been made since the legal establishment of the ICRIR in December 2023 and the formal appointment of the Board of Commissioners.[7] In addition, two further Statutory Instruments have also been put before Parliament and came into force on 1 May 2024 – one on retention of biometric material by the ICRIR[8] and one on the ICRIR’s holding and handling of information.[9]
The ICRIR in its communication explained that, in March 2024, it had published for public consultation a detailed framework for its operational design (for full details see DH-DD(2024)364).[10] This was after the Chief Commissioner and ICRIR officers had met with a wide range of individuals/groups to hear their views.
In essence, the ICRIR will take a trauma-informed approach to its work and will undertake its investigative work in three main stages: support to the requesting individual/family (with dedicated case support workers), information recovery (when a team of investigators will gather information and evidence and seek to answer the questions of the requesting individual/family) and findings (the production of reports), through three interconnected teams. In addition to the principal objective of promoting reconciliation, the Commissioners have committed to three essential principles for the work of the ICRIR:
1. Compliance with the European Convention on Human Rights;
2. Respect for the principles of the 1998 Belfast Good Friday Agreement;
3. Focus on providing useful information to those affected by the Troubles.
In further correspondence from the ICRIR received on 2 May 2024 (DH-DD(2024)550), it is explained that a second policy document was circulated for public consultation at the end of April 2024, setting out how the ICRIR should approach investigations linked to advanced stage inquests and provide enhanced inquisitorial proceedings where appropriate in other investigations as decided by the Chief Commissioner.[11] In these cases, the ICRIR will work to avoid unnecessary delays to conclude the work that the inquests started.
Legal challenges
On 28 February 2024, the High Court of Northern Ireland handed down a judgment of over 200 pages in relation to legal challenges against the Act by several individuals.[12] The High Court made a number of findings and declarations[13] related to different parts of the Act, including most relevant to this group:
- The immunity from prosecution provisions in the Act (as well as certain other provisions[14]) are incompatible with Articles 2 and 3 of the European Convention and the Windsor Framework and should therefore be disapplied;
- The proposed statutory arrangements, taken together with the policy documents published by the ICRIR, inject the necessary and structural independence for it to comply with the requirement for independence to meet the procedural obligations under Articles 2 and 3;[15]
- The ICRIR has wide powers and a range of discretion to carry out its reviews leaving sufficient scope for it to conduct effective investigations capable of leading to prosecutions as required under Articles 2 and 3;
- The powers of disclosure appear to be compliant with Articles 2 and 3 and an improvement on the situation in relation to inquests;
- The Act does not preclude transparency, victim participation and public scrutiny should the ICRIR adopt and implements its proposed policies;
- The barring of Troubles-related civil claims brought after legal commencement of the legislation is compatible with the European Convention, but barring of the continuation of civil actions not commenced before 17 May 2022 is incompatible with Article 6.
The United Kingdom Government has lodged an application for appeal and the hearing before Court of Appeal in Northern Ireland is expected in June 2024. The authorities underline that, despite the High Court judgment, which extinguishes certain provisions and in particular the conditional immunity provisions, the ICRIR was found to be operationally independent and capable of carrying out Convention compliant investigations into deaths and serious injuries. It is on this basis and with the limitations imposed by the High Court judgment, that the ICRIR became operational on 1 May
