Committee of Ministers Secretariat Du Comite Des Ministres

SECRETARIAT GENERAL

SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES

Contact: Clare Ovey Tel: 03 88 41 36 45

Date: 07/12/2015 DH-DD(2015)1330

Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers.

Meeting: 1243 meeting (8-10 December 2015) (DH)

Item reference: Communication from the applicants’ representative (07/12/2015) in the case of Kelly and others (McKerr group) against the United Kingdom (Application No. 30054/96)

Information made available under Rule 9.1 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements.

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Les documents distribués à la demande d’un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou politique du Comité des Ministres.

Réunion : 1243 réunion (8-10 décembre 2015) (DH)

Référence du point : Communication du représentant des requérants dans l’affaire Kelly et autres (groupe McKerr) contre Royaume- Uni (Requête n° 30054/96) (anglais uniquement)

Informations mises à disposition en vertu de la Règle 9.1 des Règles du Comité des Ministres pour la surveillance de l’exécution des arrêts et des termes des règlements amiables.

Submission to the Committee of

Ministers DG 1 - 7 DEC. 2015 SERVICE DE L'EXECUTION DES ARRETS DE LA CEDH Concerning

The supervision of the case of Kelly and Others v UK

And

The action of security forces

The Loughgall Ambu sh in N orthern Ire land on

8 May 1987

30 November 2015

KRWLAW Kelly and Ors v Ill e United Kingdom, judgment of 4 May 2001, final on 4 August 2001

1. T his submission is made pursuant to Rule 9(1) of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of 1 friendly settlements , in advance of the 1243rd meeting of the Committee of Ministers on 8-10 December 2015.

2. KRW Law LLP is the legal advisor acting on behalf of the families of those killed by British security forces in the Loughgall Am bush of 8 May 1987 in Northern Ireland.

3. The facts of the incident, its background and the subsequent police investigation and inquests thereof were examined in great detail by the Third Section of the European Court of Human Rights at Strasbourg (Mr JP Costa presiding), which delivered its ruling on 4 May 2001 [paras 12-41 ].

4. The Honourable Court at Strasbourg found that the UK had violated the procedural duty inherent under Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"), in that there was a lack of independence of the investigating authorities, a lack of public scrutiny in the decision not to prosecute the soldiers who were involved in the incident, the inquest procedure itself was incapable of making fi ndings which could be effective in securing a prosecution against those responsible, the soldiers who had been involved in the incident could not be required to testify at the inquests, the applicants were unable to participate in the inquests effectively and this resulted in long delays and finally, that the inquests themselves were subject to unreasonable delays and were not reasonably prompt or expeditiously conducted [para 136].

5. Since the above ruling by the Honourable Court, inquest law in Northern lreland has been reformed considerably:

1 As adopted by the Committee ofMinisters on 10 May 2006 a. Individuals can now be compelled to testify before a coroner except insofar as such testimony may be self-incriminatory or incriminate the individual 's spouse2

b. The ruling of the erstwhile Appellate Committee of the House of Lords in R v HM Coroner for the Western District of Somerset ex p Middleton [2004] UKHL 10, 2 AC 1823 in relation to bringing the remit of an inquest in li ne with the requirements of Article 2 ECHR have been read into inquest law in Northern Ireland by, inter alia, the ruling of the Northern lreland Court of Appeal in Re Jordan 's Applications.for Judicia/ Review [20 14] NICA 764

c. The coroner is now under a statutory duty5 to report any matters of criminality arising out of an inquest to the Public Prosecution Service in Northem lreland, thereby satisfying the directions of the Honourable Court in Strasbourg that an Article 2 compliant investigation ought to be capable of identifying those responsible6

6. The Coroners Act (Northem Treland) 1959 is the statute, pursuant to which, inquests are held in Northern Ireland. Section 14( 1) of the 1959 Act enables the Attorney General for Northern Ireland to exercise his discretion to direct that a fresh inquest be held into any death, if he should consider the grant of such a direction "advisable".

7. Neither the 1959 Act, nor its associated rules7 define the term "advi sable". However, it is generally the contention of the Attorney General, as well as the former Senior Coroner, that s.14(1) directions may be granted in respect of concluded inquests 8 which were pcrfunctory, or slipshod .

2 Rule 2 of the Coroners (Prac1ice and Procedure) (Amendment) Rulcs (Northern lreland) 2002 (no. 37 of2002) 3 Para 35, per Lord Bingham of Comhill ~ Para 110 , per Morgan LCJ 5 Pursuant to s.35(3) of 1he Jus1ice (Northern Ire land) Acl 2002 6 Janowiec and Others v Russia (Application nos. 55508/07 and 29520/09 ; 21 October 201 3; GC) para 143 7 The Coroners (Prac1ice and Procedure) Ru les (Northern lreland) 1963 , (Amendment) Rules 1980, (A mendment) Rules 2002 and (Amcndment) Rules 2008 8 John Leckey and Desmond Greer QC Coroners' Law and Practice in Northern Ire/and (SLS: 1998) para 15.07, at page 296 8. This is supported by the observations of Lowry J (as he then was) in R(Larmot) v HM Coroner for the City ofBelfast , who, in declining to grant an order for a fresh inquest, suggested s.14( 1) as the means of getting the relief sought. 9

9. Section 14(2) and (3) of the 1959 Act, inserted by the No1thern lreland Act 1998 10 (Devolution of Policing and Justice Functions) Order 2010 , significantly amended the above procedure. Subsections 2 and 3 of section 14 of the 1959 Act now stipulate:

"(2) Subsection (3) appfies in relation Io the death ofa persan ifthe Secrelaty ofSt a te certifies that there is information relevant Io the question of whether a direction shou/d be given under this section in relation Io the death which is or includes information the disclosure ofwhich may be against the interests of national security.

(3) Thefunctions ofthe Attorney General under this section are to be exercised by the Advocate General for Northern Irelcmd instead."

1O. The Northern Treland Act 1998 (Amendment of Schedule 3) 2010 Order11 significantly amended the Northern lreland Act 1998, which is the constitutional bedrock on which devolved government in Northern Ireland rests, pursuant to the Belfast Agreement 1998 (Good Friday Agreement). Particularly important in the 1998 Act was paragraph 15 of Schedule 3 which devolved to Northem Ireland ( .. transfened"):

"A fi mal/ers ... relating to ... coroners, including procedure, evidence, appeals, juries, costs, legal aid and the registrai ion, execution and enforcemenl of judgments and orders ... "

11. The (Amendment of Schedule 3) 2010 Order deleted the above paragraph, and consequently, revoked the complete transfer of coronial powers to Northern Treland, keeping national security matters solely within the purview of the Advocate General

9 Oebates of the Senate ofNorthern lreland, volume 43, columns 667-668 (3 Novernber 1959) (Minister of Home Affairs) 10 Article 1O of the 2010 Order giving effect to Schedule 14 of same (SI 2010/976) 11 (S I 2010/977), issued in conjunction with the Devolution of Policing and Justice Order 2010 for Northern Ireland (who is concurrently the Attorney General for England and Wales).

12. In January 2012, the erstwhile Historical Enquiries Tearn ("HET") of the Police Service of Northern Ireland ("PSNI") released a Review Summary Report ("RSR"), exarnining the substantive and procedural issues conceming the incident at Loughgall as well as its subsequent police investigation.

13. The HET was a body designed to part/y discharge the Article 2 investigatory obligations of the UK in respect oflegacy cases arising out of the Conflict in Northern 12 Ireland , and was effectively disbanded when the Legacy Investigations Branch 13 ("LIB") of the PSNI took over its existing caseload .

14. On 16 July 2012, an application to the Attorney General for Northern Ireland was submitted to request the exercise of his discretion pursuant to s.14(1) and order a fresh inquest into the killings at Loughgall on 8 May 1987. The application was submitted by the Committee for the Administration of Justice ("CAJ").

15. On 4 July 2014, the Attorney General for Northern Ireland wrote to CAJ to inform them that the Secretary of State for Northern Ireland ("SoSNI") had written to the Attorney outlining her intention to issue a certificate pursuant to s.14(2) of the 1959 Act, effectively transfe1Ting the case from the Attorney General for Northern Ireland to the Attorney General for England and Wales.

16. We then applied for leave to have the decision of the SoSNI judicially reviewed on behalf of Brigid Hughes, wife of Anthony Hughes, killed in the 1987 Ambush and one of the original applicants in Kelly (application for leave lodged with the High Court of Judicature in Northern Ireland on 3 November 2014), and leave was granted for same on 19 March 2015, in relation to the following two issues:

12 Cases concerning the action ofsecurityforces in Northern lreland Resolution CM/Jnf/DH/(2008)2revised para 24 13 http://www.bbc.eo.uk/news/uk-northern-ireland-30330751 a. The decision to issue a certificate was contrary to Article 2 ECHR because (i) the state bodies implicated in the events leading to the death of the Applicant's husband have been granted a decisive say in whether there should be a fresh inquest, (ii) there will be no public scrutiny of the decision as to whether a fresh inquest is advisable, (iii) the next-of-kin victims cannot be involved in the procedure as to wbether there should be a new inquest to the extent necessary to safeguard their legitimate interests, and;

b. Section 14 Coroners Act (No11hern Ireland) 1959 is ultra vires the Northern Ireland Act 1998. A decision as to whether to direct an inquest is not a decision as to an excepted matter, such as national security. Rather, the conduct of inquests is a transferred matter by reason of the Northern Ireland Act 1998 (as amended by Northern Ireland Act 1998 (Amendment of Schedule 3) Order 2010 (SI 2010/977)). Accordingly, s.86 Northem Ireland Act 1998 does not apply.

17. The application for judicial review was listed for the hearing of substantive matters on 22 October 2015.

18. On 23 September 2015, the Advocate General for Northern Ireland, Jeremy Wright QC, announced bis decision to allow the request for a fresh inquest into the killings at Loughgall, having read what he described as a "huge amount of material". lt is unclear, though highly likely, that a section of this material is in relation to national security grounds, this being the only reason why the inquest application was certified by the SoSNI for the Advocate General, supra.

19. We recogmse, as the Honourable Court had done in Kelly, that "disclosure or publication ofpolice reports and investigative materials may involve sensitive issues with possible prejudicial effects to private individuals or other investigations and, therefore, cannai be regarded as an automatic requiremenl under Article 2. The requisite access of the public, or the victim 's relatives may be provided for in other 14 stages ofthe available procedures" .

14 Para 1 15, Kelly 20. However, it is also necessary that an appropriate balance be struck between the interests of national security and disclosure of sensitive documentation and the significant public interest in justice which is both transparent and pub! icly 15 accessible , especiall y when the Loughgall Ambush concems cogent allegations of the use of unlawful and lethal force by the State.

21. We remain concemed that the attempt by the UK Government, in providing a shield through the partial retention of coronial investigatory powers in relation to the broad brush "interests of national security'', is attempting to subvert the greater public interest in transparent justice, and by doing so, attempting to further abrogate the obligations of the UK under Article 2 ECHR.

22. Furthermore, the delays whjch have hindered the appropriate investigation of this horrifie incident, whjch the Honourable Court had already held to be unreasonably lengthy, supra, are compounded by the continued measures employed by the UK Government in resisting the transparency, candour and accountability which it certainly owes to the next-of-kin of the victims who were killed in the ambush and, if the obligations inJ1erent under Article 1 ECHR are to have any meaning, then the wider public are also owed the duty of candour and accountability.

23 . So committed do the UK Govemment appear to be to a regime of opacity in relation to disclosure of sensitive material and a thorough and proper investigation into 16 Legacy matters, that the Legacy provisions in the Stormont House Agreement 2014 , namely the creation of new institutions designed for effective investigations, transparency and safeguarding the interests of victims and their next-of-kin, have been put on hold, sine die, due to disagreements between the UK Government, the Republic of Ireland Government and Northern Ireland political parties on the issue of the level ofdisclosure . 17

15 Para 137, Kelly 16 Stormont House Agreement 20 14 paragraphs 2 1-55 17 Ewan Palmer, 'Stormont agreement: Deal reached to save Northern Ireland powers sharc after Troubles legacy crisis' The International Business Times ( 17 November 20 15) available http://www. ibt imes. co. uk/stonn on t-agreemen t-dea 1-reached-sa ve-norrhern-ire land-power-share-a fter-trou b1 es legacv -cr is is- l 529226 24. In the instant case, disclosure of material has been delayed, multiple times, by the UK Government, which has raised the issue of adequate resource allocation as a defence to such delay. The UK Government's position, that there is inadequate resourcing, has effectively delayed any recourse to civil remedies. This position is currently under appeal at the High Com1 of Judicature in Northem Ireland, with the matter listed for hearing on 18 January 2016.

25. In light of the foregoing, while the endorsement of the Tshwane Principles 2013 18 by 19 the Parliamentary Assembly of the Council of Europe , and the promulgation of the Convention on Access to Official Documents20 based on same are laudable efforts on the part of the Council of Europe to ensure accountability and transparency, we note with concern that the United Kingdom is not a signatory Party to the Convention on Access.

26. Of parti eu Jar concern is the fact that Principle 10 of the Tshwane Principles, as endorsed by the Parliamentary Assembly of the Council of Europe, does not find expression in the division of coronial responsibility on national security grounds. Principle 10 concerns overriding public interests which militate in favour of disclosure, chief among these interests being accountability for violations of 2 1 international human rights law and humanitarian law .

27. Our concerns lie with the fact that, in matters of disclosure of material which concems national security, the State, being in possession of such material, if often granted a wide discretion in the domestic law of the UK. The highest echelons of the judiciary have historically held that once "the court is satisfied that the interest of national security is a relevant factor to be considered in the determination of the case, the 22 court will accept the opinion ofthe Crown" .

28. This has been most recently applied to disclosure at inquests. In Foreign Secretary v Jnner North London Assistant Deputy Coroner [2013] EWHC 3724 (Admin),

18 LaRue et al, The Global Princip/es on National Security and the Righi 10 Information (Tshwane Princip/es) (20 13) https://www .opensocietyfoundations.org/sites/default/fi les/global-principles-nationa l-security- J 0232013 .pd f 19 Resolution 1954 (2013), at paragraph 8 2° Convention on Access to Official Documents (not yet in force) 21 Tshwane Principles (n 17) page 21 22 CCSU v Minister for Civil Service [ 1985) AC 374 (HL) at 406 G per Lord Scarman Goldring LJ, delivering the judgement of the Court of Appeal in England and Wales,

declared, "the Secretary ofState's view regarding the nature and exlent of damage 10 national security which will jlow fi'om disclosure shou!d be accepted unless there are cogenl or solid reasons to reject if" .23 In light of the significant presumptions in favour of executive discretion granted to the State, it remains our concern that, despite the announcement by the Advocate General on 23 September, a full and fear!ess investigation, such that Article 2 ECHR can be satisfied, will not take place.

29. ln the case of the Loughgall Ambush, Principle 9, stating that only information conceming "currenf dejènce plans, operations and capabilities for the /ength of lime that the information is of operationa! utility"24 may be legitimately withheld, is also relevant. The Loughgall Ambush occurred in 1987, almost three decades ago. Any military or other "security" utility from the information generated as a result of the Ambush and its surrounding circumstances cannot reasonably be contended to continue into the present day.

30. Moreover, significant developments have occurred in Northern Ireland in the intervening years since the Loughgall Ambush. The Provisional IRA, involved as they were in the Ambush, issued a ceasefirc in 1994 and again in 1997, pursuant to the Peace Process which resulted in the adoption and implementation of the Good Friday Agreement 1998, a devolved, elected Assembly and a consociational Executive responsible to same. In a recent examination of paramilitary activity in Northern Ireland, it was concluded:

"The PIRA [Provisional IRA] ofth e Troubles era is we/1 beyond reca/1. Jt is ourfirm assessment that PJRA 's leadership remains committed to the peace process and its aim of achieving a united Irelanc/ by political means. The group is not involved in targeting or conducting terrorisl allacks against the state or ils representatives"25

23 [2013) EWHC 3724 (Admin) paragraph 57 24 Ibid page 19 is Paramilitwy Croups in Northern Ire/and: An assessment co111111issioned by the SecretG1y o/Statefor Northern Ire/and on the structure, araie nd purpose ofpara111ilita1y groupsfocusing o those which declared ceaseflres in order to support andfacilitate the politica/ process (20 15) httos://www.gov.uk/govcrnment/uploads/system/ uploads/attachment data/file/469548/Paramilitarv Groups in Northem lreland - 20 Oct 2015.pdf paragraph 14, at page 4 31 . In light of the foregoing, we reiterate our contention that there is arguably no current operational utility which could justify non-disclosure of documentation which is in possession of the State, and by reason of this atone, the State should be called upon to expressly commit to such disclosure at the inquest.

32. Finally, we recall the judgment of the Honourable Court at Strasbourg in Salman v Turkey (Application no. 21986/93 ; 27 June 2000; GC), where the Grand Chamber held:

"Where the evenls in issue lie wholly, or in large part~ within the exclusive knowledge of the aulhorities [ ... ], the burden of proof may be regarded as resting on the authorities to provide a satisfactaty and convincing explanation"26

33. As such, it remams our concern that, without an express commitment to full disclosure of ail relevant evidence at the inquest, an investigation consonant with the requirements of Article 2 ECHR cannot take place. This is ai l the more crucial, as the circumstances which led to the Loughgall Ambush had a significant element of involvement by the State.

34. We therefore call on the Committee of Mini sters to continue to closely scrutinise and monitor the actions of the UK Government, and, through, inter alia, the initiation of infringement proceedings, express itself as to the continued failure by the UK Government at resolving the inadequacies of an investigatory process which has yet to see a conclusion, twenty eight years after it commenced.

26 (Application no. 21986/93; 27 June 2000; GC) para 1OO