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FOURTH
SECTION
CASE OF O'DOWD v. THE UNITED KINGDOM
(Application
no. 34622/04)
JUDGMENT
STRASBOURG
27
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of O'Dowd v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G.
Bonello,
Mr K. Traja,
Mr S. Pavlovschi,
Mr J.
Šikuta,
Mrs P. Hirvelä, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 6 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34622/04) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by Mr Bernard
O'Dowd and Mr Michael Gabriel O'Dowd, Irish nationals, (“the
applicants”), on 10 September 2004.
- The
applicants were represented by Madden & Finucane, solicitors
practising in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger of
the Foreign and Commonwealth Office, London.
- The
applicants alleged that there had been no adequate investigation into
allegations of collusion and/or involvement by security forces in the
killing of their relative, nor any effective remedy for the same.
They invoked Articles 2 and 13 of the Convention.
- By
a decision of 6 March 2007 the Court declared the application
admissible.
- The
applicants and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant Bernard O'Dowd, who was born in 1923 and lives in
Drumnee, County Meath, Ireland, was the father of Barry O'Dowd and
Declan O'Dowd. The second applicant Michael Gabriel O'Dowd, who was
born in 1951 and lives in Bleary, was the son of Joseph O'Dowd.
A. The attack on the O'Dowd home and the initial
investigation
- On
the evening of 4 January 1976, the first applicant was hosting a
family get-together at his home in Ballydougan, County Down. At about
6.30 p.m. three masked gunmen forced their way into the house. Barry
O'Dowd, Declan O'Dowd and Joseph O'Dowd were shot and killed. The
first applicant was hit by nine bullets but survived. About thirty
shots were fired during the incident. No organisation claimed
responsibility for their deaths. The same night an attack was
launched on the home of another Catholic family in Armagh, in which
John and Brian Reavey were killed and Anthony Reavey was injured.
- The
three men were believed to have made their getaway in a Morris 1300
car, 3315XZ, stolen earlier from Robert Street, Lurgan.
- The
emergency services – police and ambulance – arrived
within a short time. Detectives and Scene of Crime Officers commenced
investigations. Post-mortems were held. House to house inquiries were
conducted in the area and along the suspected getaway route with
negative results. Nineteen spent bullet cases were recovered at the
scene and the weapon used was identified as one used in four other
attacks. Numerous witnesses were interviewed, including members of
the family who were interviewed at length. Ronan O'Dowd stated that
he had observed two men standing beside a red car, possibly a “1300”,
close to the house, both men were masked and had “walkie
talkie” radios. Cathal O'Dowd stated that he had observed a
blue coloured “Viva” car near the house that afternoon.
- Several
days before the attack, Ronan O'Dowd had seen masked men running up a
lane adjacent to the house, in what the applicants believed was a
dummy run for the attack. The family also recollected seeing officers
of the Royal Ulster Constabulary (“RUC”) and Ulster
Defence Regiment (“UDR”) in fields near the house the day
before the attack, which was an unusual occurrence.
- Police
inquiries revealed that a red Morris 1300 had been stolen from Lurgan
on 4 January 1976; it was found burnt out on 5 January 1976.
Inquiries in Lurgan proved negative. No further information was
received on the “Viva” car.
- Three
men were arrested by the police on 5 January 1976 and questioned
about the murders. They were released on 8 January 1976 and no
charges were preferred.
- On
20 January 2006, the first applicant stated that one man who had
entered the house was similar in appearance to a man whom he named.
The man was arrested, questioned but eliminated from the inquiry
following verification of his alibi.
- In
May-June 1976, the police questioned the first applicant and asked
him to identify a weapon. He identified the weapon as one used in the
attack. He was told that it was linked to Robin Jackson, a prominent
loyalist paramilitary and to a number of other loyalist attacks.
- An
Inquest held on 11 February 1977 returned open verdicts.
B. The investigations concerning McCaughey and Weir
- After
1976 there were no further developments in the O'Dowd murders until
1999 when John Weir made allegations of police involvement in a range
of loyalist terrorist incidents including the attack on the O'Dowds.
- In
the course of an investigation in 1978, the police had arrested a
reserve police constable, William McCaughey, who, in the course of
questioning, revealed his part in the abduction of a priest and in a
variety of other loyalist paramilitary incidents. McCaughey's
revelations gave rise to investigations in eleven specific cases,
some of which were linked in terms of the identities of those
involved, the modus operandi or by virtue of the ballistics
examinations of weapons used. Nine suspects were arrested in total,
including five police officers and all were eventually charged with
offences.
- One
of those implicated was a police officer John Weir who was named as
having been involved in the murder of a shopkeeper called Strathearn
in Ahoghill in April 1977: he was convicted for that murder in June
1980 and sentenced to life imprisonment. The Government stated that
both McCaughey and Weir refused to name the two loyalist
paramilitaries also involved with them in the murder unless they
received immunity from prosecution. The police and prosecuting
authority took the decision prior to the trial not to enter into any
process of bargaining with Weir and McCaughey. While both were
approached by the police after their convictions to see if at that
stage they would give evidence against the loyalist paramilitaries,
each again refused to do so unless there was something in it for
themselves. The Government stated that during the period in which
Weir was detained he was interviewed on a large number of occasions.
At no time did he implicate himself or others in any offence other
than the Strathearn murder.
C. The Weir allegations and the response of the
authorities
- On
1 February 1993, John Weir was released from prison on licence. In
January 1999, he made a statement to a journalist alleging RUC and
Ulster Defence Regiment (“UDR”) collusion with loyalist
paramilitaries from the Portadown area in the mid-1970s. This
statement was published in the Sunday Times newspaper in March 1999.
It was obtained by the Patrick Finucane Centre, a human rights
non-governmental organisation in Derry (“the Centre”).
- John
Weir's statement made detailed allegations about security force
collusion with loyalist paramilitaries in a series of incidents. He
alleged inter alia that RUC Reserve Constable Laurence McClure
had told him that Robin Jackson had carried out the murders in the
O'Dowd home and that the attack had been co-ordinated with the attack
on the Reavey family the same night in which security force personnel
participated directly. The statement also made links between these
incidents and other attacks allegedly carried out by members of the
security forces, both RUC and UDR, and loyalist paramilitaries. This
group used the farmhouse in Glennane owned by James Mitchell, a RUC
reservist, as a base from which to carry out attacks on Catholics and
nationalists. Other attacks allegedly included the murder of John and
Brian Reavey and wounding of Anthony Reavey in their home on 4
January 1976 (see application no. 34640/04); the murder of Colm
McCartney and Sean Farmer at a bogus vehicle checkpoint in August
1975 (see application no. 34575/04); the attack on Donnelly's Bar in
which Trevor Brecknell, Michael Donnelly and Patrick Donnelly were
killed (see application no. 32457/04); and the attack on the Rock Bar
in which Michael McGrath was seriously injured (see application
no. 34561/04). Weir also linked these attacks to the Dublin and
Monaghan bombings in which 33 people were killed in the Republic of
Ireland.
- On
or about 10 June 1999, RTE, an Irish television channel, broadcast a
television programme that contained allegations of security force
involvement in a number of deaths, including that of Trevor
Brecknell. Weir made allegations on that programme that members of
the RUC and UDR were directly involved in the attack on Donnelly's
Bar. A BBC Spotlight programme produced a similar documentary dealing
with these allegations.
- These
allegations attracted considerable attention on both sides of the
Irish border and became the subject of police investigation in both
jurisdictions. The Government stated that the police investigation in
Northern Ireland was focussed on determining whether Weir's
allegations should be assessed as sufficiently credible to require a
full investigation. They obtained from the journalist an edited
transcript of the interview with Weir. While his whereabouts were
unknown to the RUC, Weir met with senior Irish police officers at the
Irish Embassy on 15 April 1999. A copy of his statement was provided
by the Garda to the RUC, along with a further statement made by Weir
to another journalist dated 3 February 1999. The police analysed the
available materials and sought to identify the personalities to be
interviewed. It became apparent that some had died and that others,
living abroad, could not be traced. A series of seven interviews were
conducted, under cautions, between July and December 2001, of those
individuals central to Weir's account who could be traced. No charges
were preferred. The interviews followed the format of Weir's
allegations being put to the interviewee for his or her response. The
predominant response was denial of any involvement and claims that
Weir had been untruthful. No admissions were made by any interviewee.
Interviews were also conducted with less central personalities and
with police officers involved in interviewing Weir in 1978. The
latter stated that Weir had not mentioned the matters now being
alleged.
- Meetings
were held regularly with RUC counterparts in the Republic of Ireland.
The RUC co-operated also with the judicial inquiry established in the
Republic of Ireland into the Dublin and Monaghan bombings (see the
description of the inquiry in the case of Brecknell referred to
above). Amongst matters about which the RUC team provided information
to the inquiry was ballistics information which linked some of the
weapons used to more than one incident. In February 2000 a
substantial report was compiled by the RUC for the Garda dealing with
Weir's allegations. It profiled Weir and dealt inter alia with
a description of the 1978 investigation into McCaughey, Weir and
others. It concluded that the investigation would continue but that
his credibility was in doubt. According to the Government, despite
inquiries being conducted, Weir's whereabouts could not be traced.
This report was not disclosed as the investigation was continuing. An
internal RUC report dated 27 February 2001 concluded that it would be
necessary to interview Weir before any view could be finalised in
respect of the credibility of his allegations: such interview was not
possible as his whereabouts were not known. The report noted the
absence of any previous mention of the allegations before 1999 and
that much of what he said was hearsay and speculation. Inquiries made
of the British Embassy in Nigeria (where he had a known address) and
the criminal intelligence service and others failed to locate Weir.
Contact was made with the Garda and the secretariat of the Inquiry
into the Dublin and Monaghan bombings without positive result.
- The
Serious Crime Review Team (“SCRT”) was established in
March 2004, with responsibilities including the review of all
historical murders by way of case assessment for evidential and
investigative opportunities. A preliminary case assessment was
carried out by a detective chief inspector, who audited all known
information and documentation.
- In
light of the preliminary assessment, the case was referred to the
Historical Enquiry Team (HET). On 28 April 2006, a Senior
Investigating Officer reported on the further review; a number of
potential lines of enquiry were identified and recommendations made,
including that the HET should extensively interview Weir. This
recommendation was approved. The HET director of Investigations,
Detective Chief Superintendent James of the London Metropolitan
Police Force, took over personal supervision of the investigation
which has progressed through the first three of five stages of the
HET process (collection of all relevant material; assessment of the
investigations to date; review of evidence, with intelligence and
open and non-police sources together with a meeting with the families
of the victims of the attack). As a number of investigative
opportunities were identified and to be followed up, the case was to
continue to be processed by HET, which had been put in touch with
Weir by the Centre. The Government submitted that if any evidence of
police involvement in the murders was found, the Office of the Police
Ombudsman for Northern Ireland would then become involved. The
Government have provided recent information that Weir finally agreed
to meet with the HET in Dublin; he refused, however, to make a
written statement or to give evidence in court.
- There
has been contact between the police and family members, their
solicitors or the Centre. In particular, there were meetings in
September 2002 with Detective Chief Inspector Paterson, and a meeting
with the Chief Constable in June and August 2004; members of HET met
with families or their representatives on 29 March and 31 May 2006;
and there has also been extensive correspondence with the families or
their representatives.
D. Application for judicial review concerning the
inadequacy of the investigation
See
Brecknell, cited above (§§ 39-41).
E. Reports of the Independent Commissions of Inquiry
(Republic of Ireland)
See
Brecknell, cited above (§§ 42-49).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
- The
applicants complained that the United Kingdom had failed to provide
an effective official investigation into the circumstances of their
relatives' deaths after allegations were made in 1999 by John Weir as
to RUC involvement, invoking Article 2 of the Convention which
provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”.
A. The parties' submissions
- The
parties' submissions repeat those made in the Brecknell case
(cited above, §§ 54-59, 60-64).
B. The Court's assessment
- The
Court refers to its statement of principles and analysis as set out
in Brecknell (cited above, §§ 65-81). For the same
reasons it concludes that the investigative response to Weir's
allegations lacked the requisite independence in its early stages
when under the control of the RUC. There has been, in that respect
alone, a violation of Article 2 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- In
view of its findings above, the Court finds that it is not necessary
to examine separately the complaint under this Article.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed non-pecuniary damage for the suffering and
distress caused by the State's failure to conduct an effective
official investigation into the circumstances of their relatives'
deaths.
- The
Government submitted that even if there was a breach of the
procedural obligation it would not be appropriate to apply the same
scale as in cases of procedural breaches in the immediate aftermath
of death. They considered a finding of a violation should be held in
itself to constitute just satisfaction. Alternatively, any award
should be modest.
- The
Court has found that the national authorities failed in their
obligation to provide a properly independent investigative response
in the initial stages following the allegations made by John Weir
concerning the deaths of the applicants' relatives. In the
circumstances, it considers that the applicants sustained some
non-pecuniary damage which is not sufficiently compensated by the
finding of a violation of the Convention. Making an assessment on an
equitable basis, the Court awards each applicant the sum of EUR
5,000.
B. Costs and expenses
- The
applicants claimed GBP 7,721.34 for solicitors' costs, inclusive of
value added tax (VAT) for this application.
- The
Government submitted that the overall solicitors' charging rate (with
an uplift of 50% for care and conduct) was excessive, and half the
amount was appropriate. The overall hours claimed were also excessive
given that similar issues arose in the four other cases considered at
the same time. They proposed no more than GBP 20,000 for solicitors'
costs in total for all four cases together.
- The
Court recalls that only legal costs and expenses found to have been
actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see,
among other authorities, Nikolova v. Bulgaria [GC], no.
31195/96, 25 March 1999, § 79, and Smith and Grady v. the
United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, §
28, ECHR 2000-IX).
- The
Court has already awarded EUR 29,000 for solicitors' costs in the
Brecknell case (§ 92). Having regard to the fact that
only the initial presentation of facts in this case required separate
treatment from the lead application, it awards the applicants EUR
5,000, which figure is inclusive of VAT.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 2 of the Convention due to the lack of independence of
the RUC during the initial stages of the investigation begun in 1999;
- Holds that it is not necessary to examine
separately the applicants' complaint under Article 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts to be converted into pounds sterling at the rate applicable
at the date of settlement;
in respect of
non-pecuniary damage, EUR 5,000 (five thousand euros) each;
in respect of costs
and expenses, EUR 5,000 (five thousand euros);
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 27 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
