THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY
OF
Application no.
41894/98
by Robert and Dinah-Anne HAY
against the United Kingdom
The European
Court of Human Rights (Third Section), sitting on 17 October 2000 as a Chamber
composed of
Mr J.-P. Costa, President,
Mr W. Fuhrmann,
Mr P. Kūris,
Mrs F. Tulkens,
Mr K. Jungwiert,
Sir Nicolas Bratza,
Mr K. Traja, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to
the above application introduced with the European Commission of Human Rights on
23 January 1998 and registered on 25 June 1998,
Having regard to
Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to
examine the application was transferred to the Court,
Having regard to
the observations submitted by the respondent Government and the observations in
reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first
applicant is a British citizen, born in 1940 and resident in Kent. The second
applicant is also a British citizen, born in 1946 and resident in London. They
are brother and sister. Before the Court they are represented by Ms Chitra Karvé,
legal officer for the organisation Liberty, in London.
The respondent
Government are represented by Ms Ruma Mandel, Foreign and Commonwealth Office,
as Agent for the United Kingdom Government.
A. The circumstances of the case
The facts of the
case, as submitted by the parties, may be summarised as follows.
Events of 13
October 1993
The applicants’
brother, Ian Hay, was shot dead outside the family home, Crabadon Manor, Devon,
by officers of the Devon and Cornwall Constabulary (DCC) on 13 October 1993.
Crabadon Manor is located in an isolated and rural location.
On 30 April 1993,
Ian Hay went to his local police station and voluntarily handed in a number of
legally held weapons to Inspector Martin. The Inspector was concerned about the
state of Ian Hay’s mental health and, on 11 May 1993, he attended Crabadon Manor
and seized more weapons. On 11 September 1993, Ian Hay asked for the return of
some of the weapons. However, Inspector Martin refused until such time as Mr Hay
could produce a certificate as to the state of his mental health.
On 1 May 1993, Mr
Hay’s doctor, Dr Lewis, had received a message from Mr Hay’s neighbour saying
that Mr Hay was displaying irrational behaviour whilst in possession of a weapon.
The neighbour was concerned as to the state of Mr Hay’s mental health.
On 13 October
1993, there were two incidents involving firearms. Firstly, at about 11 a.m., Mr
Hay fired a gun eight times into a sheep trailer at a nearby farm in the
presence of the farmer’s wife. The woman was very frightened and stated that Mr
Hay was in an emotional state and had said to her after loading the gun, “This
is what I will do to the police if they come near me”. Later, at 1.50 p.m., Mr
Hay went into the local public house armed with a gun with a bayonet attached
and a hand gun. He again displayed irrational behaviour, and fired one of the
guns several times into the open fireplace in front of the barmaid. He then
reloaded the gun in her presence. The barmaid telephoned the police. A neighbour
had already telephoned. A further shot was fired in the street outside. Mr Hay
then returned to Crabadon Manor where he had lunch with his mother.
At 1.49 p.m. the
DCC at Paignton had received the call from the neighbour of the public house.
Police vehicles were ordered to the scene, a police surveillance helicopter took
off around 2.00 p.m. and the instructions to the helicopter crew were to keep Mr
Hay in view until there could be actual physical containment by a firearms team.
A firearms unit was notified. By chance, 10 firearms officers happened to be on
a training exercise and so they were used, rather than following the standard
procedure.
The DCC had a
pre-arranged command and control structure for incidents of this kind, dividing
the command into Gold, Silver and Bronze. Gold was in overall command,
determined strategy and had overall responsibility for the provision of
intelligence, resources and logistics. The Gold Commander was of senior rank and
Gold Control was based in the operations room at police headquarters. Silver
Commander was the officer responsible for the tactical control of an incident at
the scene. He was supported by Silver Control which was based at the nearest
police station to the incident for communications purposes. Bronze Commander was
the specialist task or sector commander who had the role of implementing the
tactics determined by the Silver Commander.
Following the
report of shots being fired, this structure was put into place. At 2.24 p.m.,
Superintendent Pyke temporarily assumed the position of Silver Commander,
although it was intended that he would later assume the role of negotiator, and
that Superintendent Mechan would replace him as Silver Commander. Superintendent
Street took the role of Silver Control. Gold Control was set up in the
operations room at police headquarters under the command of Assistant Chief
Constable Albon. Chief Inspector McArthur, as officer in charge of the Armed
Containment Unit, would assume the role of Bronze Commander. At 2.31 p.m.
Superintendent Pyke authorised the deployment of armed police officers. This
command structure was communicated to everyone at 3.06 p.m.
The delay in
setting up this structure was due to the fact that it was not possible to
establish which senior officers were on duty or to contact them. In particular,
Superintendent Mechan chose to drive to the incident in his private car, which
did not have a radio installed, despite the fact that fully equipped police
vehicles were available. This meant that he was out of communication for a
period of 35 minutes, and was therefore not fully aware of the changes in the
situation.
The Forward
Control Point was not established, as it should have been, by either
Superintendents Pyke or Mechan, although the firearms team had met at the New
Inn public house and appeared to be treating the pub as the Forward Control
Point.
In a conversation
at 2.46 p.m. between Superintendent Street, Silver Control, and another officer,
it was stated that negotiators should be contacted. There were difficulties in
contacting them, as they did not have any means of emergency communication, and
they did not arrive or play any useful role before the death of Mr Hay.
Superintendent Pyke was not able to act as negotiator whilst he was still
waiting for Superintendent Mechan to replace him as Silver Commander.
At 2.43 p.m. the
helicopter crew reported that Mr Hay was waving and pointing a rifle in their
direction, and they withdrew to a safe distance. They observed that he had two
rifles in a stand position near his car. They could not keep him under constant
surveillance. At 2.50 p.m. the operations room became aware of the earlier
firearms incident at Wagland Farm.
At approximately
3.00 p.m., Mr Hay was seen loading items into his car outside the manor house.
He was now wearing a bullet-proof vest. At 3.05 p.m. the helicopter observed
that it was his mother driving the car away from Crabadon Manor. The helicopter
also observed Mr Hay as he set up a Bren gun in the driveway of the house,
although, it was noted, that the gun did not have a magazine attached to it.
There appeared to be ammunition boxes positioned near the Bren gun and also
black bin liners which it was considered could possibly contain explosives.
Attempts were made to get information about Mr Hay from his mother for
negotiation purposes. She was interviewed by a policeman, but no use was made of
her knowledge of either her son’s mental state or the layout of the house, as by
the time all the information was gathered the incident was over.
At 3.17 p.m.
Superintendent Mechan radioed that he was “at X-ray” (i.e. the Forward Control
point at the New Inn); he was in fact at Rolster Bridge, 2 miles from Crabadon
Manor. Superintendent Pyke and the firearms team were at the New Inn. Chief
Inspector McArthur briefed the firearms team and in particular reminded them of
their personal liability under section 3 of the Criminal Law Act 1967. He also
reminded the team about the possible benefits of trying to engage an armed
suspect in conversation as part of the containment process. Presuming that
Superintendent Mechan would arrive imminently, Superintendent Pyke left for
Crabadon Manor in order to fulfil his negotiating role, but did not actually
proceed to the manor itself, remaining at the nearby crossroads to await the
completion of the armed containment. Superintendent Mechan was still not in
proper communication at 3.56 p.m. when he made several calls from a private
house, and thus was never in control of the situation. In fact Superintendent
Mechan did not take any effective action as Silver Commander because his arrival
to take command was overtaken by events.
At approximately
3.30 p.m. the pilot of the helicopter observed Mr Hay lying on the lawn in front
of the house, and was actually of the opinion that he had shot himself,
confusing a shadow around him for blood. No attempt was made to detain him at
this time, although the officer operating a video camera in the helicopter
subsequently observed at the inquest that, as at this point the man was seated
on the ground, it would have been a very good opportunity to move in and
physically detain him. Mr Hay then got up, and was seen to point a weapon at the
helicopter, at which point it moved away. Mr Hay was also seen by the helicopter
to run up and down the lawn and imitate an aeroplane.
The armed
officers made their way to the house and placed themselves around the house.
Individual officers decided where to position themselves. Once in position,
officers realised that there were particular escape routes for Mr Hay which they
sought to close off. At least four of the officers were placed in positions with
poor cover. The aim was to disarm Mr Hay and to contain him in order to prevent
him from escaping into the countryside and thereby becoming a danger to the
public.
At 3.50 p.m. the
Armed Containment Team was in place around the house. It appears that the team
were unaware of the personal circumstances of Mr Hay and unaware who owned the
property. They were readily identifiable as police with caps with ‘Police’
written on them. Superintendent Pyke was not at the manor itself and, due to the
fact that events developed rapidly, did not arrive to commence any negotiations.
When the firearms team arrived Mr Hay was still seen to be lying on the ground.
Police officers were positioned fairly close to Mr Hay to prevent access to the
building and to be closer to the Bren gun with a view to preventing access to it.
Mr Hay jumped up and started shouting, swearing and waving the gun in his hand.
A police dog was sent towards him to attempt to restrain him and disarm him. Mr
Hay’s own dog distracted the attention of the police dog. One of the firearms
team shouted “Armed Police. Stand still”. One of the team tried to talk to Mr
Hay asking him to comply with their directions and repeatedly to put the gun
down. Mr Hay did not respond to any of the communications. A number of
verbal challenges were made by the police from the time Mr Hay got up to the
time he was shot. Mr Hay repeatedly pointed at his forehead and shouted “Do it,
go on, what are you waiting for?”
At 3.53 p.m.,
Chief Inspector McArthur perceived that his officers were in danger and ordered
a second police dog to be sent towards Mr Hay. Mr Hay ran screaming and shouting
towards the dog and fired three times at the dog with a hand gun and fatally
injured the dog. Mr Hay then raised his weapon towards 2 police officers, and at
that point three officers opened fire. Due to the fact that he was wearing body
armour, one shot was aimed at the top of his chest near the throat. Mr Hay was
killed instantaneously by that bullet which hit his forehead. The officer who
fired the fatal shot was 12 to 15 metres away and used a self-loading rifle.
There were other wounds which would not have been fatal by themselves. Armed
containment, if it was completely achieved, was only achieved a few seconds
before Mr Hay was shot. Medical evidence at the subsequent inquest concluded
that no drugs were detected in Mr Hay’s body which might have influenced his
behaviour, and the alcohol levels were unlikely to have had a noticeable effect
on his behaviour. A firearms expert indicated that the fatal bullet hit the
forehead because Mr Hay had started to fall forward due to the impact of one of
the bullets which had struck his back and that all three shots were fired in a
short period of time.
The police
investigation into the killing of Mr Hay
On the day of the
shooting the Police Complaints Authority (PCA) was asked by the Chief Constable
of Devon and Cornwall “to investigate the incidents culminating in the death of
Ian Fitzgerald Hay and all attendant circumstances”. The PCA appointed an
investigating officer, Mr Hugo Pike, Assistant Chief Constable of Avon and
Somerset, to undertake this task.
The report of the
PCA written by Mr Pike dated March 1994 contained a number of criticisms of the
procedure on that day. In particular, the report noted:
a. The failure to establish a “Forward Control Point”.
The applicants
submitted that the positioning of armed officers in such close proximity to Mr
Hay was unnecessary and directly caused the confrontation which ultimately led
to his death (§ 63). However the report concluded at paragraph 182:
“I am of the opinion
that given the events at Crabadon Manor on 13 October 1993, the course of action
taken by McArthur was the only available option. It was essential that <Mr Hay>
be contained at the premises and the geography of the immediate vicinity meant
that the officers conducting the containment must inevitably assume positions
closer to <Mr Hay> than might otherwise be desirable. I also acknowledge that
the position in respect of the limited availability of the helicopter lent an
urgency which had to be acknowledged.
I have already
expressed the view that McArthur’s failures amount to an offence against
discipline and that there is sufficient available evidence to prove them. These
are serious failures and whilst <Mr Hay’s> death cannot be attributed to them
that does not lessen their degree of importance.”
Disciplinary
proceedings
On 15 November
1993 Chief Inspector McArthur was served with papers under the Police Discipline
Regulations making allegations that as the tactical firearms officer he failed
to ensure that adequate planning was carried out prior to the deployment of
authorised firearms officers involved in the incident.
On 25 March 1994,
the full PCA report was presented to the Chief Constable of Devon and Cornwall
Constabulary, which recommended that disciplinary proceedings were brought
against both Chief Inspector McArthur and Superintendent Mechan for neglect of
duty, although he did not recommend any criminal proceedings. Specifically, it
was alleged that the Chief Inspector had:
“Failed to plan properly the armed containment of Crabadon Manor and in particular:-
a. Failed to take into account the local geography of the area;
Following the
inquest verdict on 12 December 1994, there was some correspondence between the
Chief Constable and the PCA. In the view of the Chief Constable, there should
not have been any disciplinary charges against either of the two officers
concerned. On 28 December 1993 he stated the following:
“[G]iven the failures
of Superintendent Mechan in this operation it is difficult to criticise Chief
Inspector McArthur. This point becomes even more poignant when it is unlikely,
in my view, that Superintendent Mechan will return from sick leave and face
discipline for this neglect.”
On 4 January 1995
the PCA wrote back invoking its statutory powers to recommend that the charge of
neglect be brought against Chief Inspector McArthur. The letter identified four
areas of concern, all of which were explained in detail in the PCA report:
On 1 February
1995, the first applicant wrote to the PCA asking that the family be represented
at the disciplinary hearing. This application was refused by Mr Portlock, the
Deputy Chief Constable of Devon and Cornwall, on the basis that they had not
lodged a formal complaint. The first applicant therefore attempted to lodge a
complaint to remedy this situation.
On 24 April 1995,
some 5 weeks before the scheduled hearing, the Chief Constable accepted the
advice of police doctors that there was a likelihood that Superintendent
Mechan’s appearance before the disciplinary hearing would hasten his complete
mental breakdown and permitted the Superintendent, who had been on sick leave
since the shooting, to retire due to ill-health. According to the medical
evidence, the Superintendent was suffering from a mental illness, and had been
at the time of the incident. The disciplinary charges against him were therefore
withdrawn.
On 9 May 1995, Mr
Portlock, formally requested the PCA not to pursue the charges against his
officers. That request was refused. On the following day, the Deputy Chief
Constable refused to allow the first applicant to lodge a further complaint of
police negligence.
In the light of
the withdrawal of the charges against Superintendent Mechan, the Chief Constable
amended the charges against Chief Inspector McArthur. At the disciplinary
hearing on 30 May 1995, the presiding Chief Constable of Wiltshire, Mr Girven,
granted the Chief Inspector’s application to dismiss the proceedings as an abuse
of process, on the grounds that the late notice of the amended charges, combined
with the delay in the disciplinary hearing (17 months after the incident), had
prejudiced his defence. A press release from the DCC the next day described the
proceedings as “unnecessary and wholly inappropriate given the lack of evidence
to support the charge”.
The PCA and the
applicants separately applied for judicial review of the decision of Mr Girven
to dismiss the charges against Mr McArthur and the applicant sought review of
two other matters, including the decision of the Chief Constable to allow
Superintendent Mechan to retire. On 21 November 1995, Mr Justice Sedley held
that the decision to allow the Superintendent to retire had not been properly
taken, but that he would not interfere with it. He further held that Mr Girven
had been wrong in law to dismiss the charges against Chief Inspector McArthur,
as there had not been any prejudice arising out of the delays. He made an order
of mandamus directing the Chief Constable to hear the charges against the Chief
Inspector on their substantive merits.
The disciplinary proceedings against Chief Inspector McArthur were eventually heard in 1997, after a delay caused by the challenges to the inquest proceedings, and in April 1997 the Chief Inspector was cleared of neglect of duty.
On the 18 October
1993, the inquest was formally opened into the death of Ian Hay. The hearing
took place between 28 November and 12 December 1994 and the Coroner heard
evidence from over 40 witnesses including acquaintances of the deceased,
witnesses to the other firearm incidents and the police officers involved in the
incident itself. One of the officers investigating the incident indicated that
the conduct of Superintendent Mechan had had no effect on the operation.
Evidence included the concern of the police that if an armed person was at large
in the area surrounding the manor it would be easy for him to conceal himself.
The Chief Inspector in charge of operational training stated that where armed
police were confronted by an armed suspect the officer can make the following
assumptions:
“The weapon is real,
the weapon is loaded, the suspect knows how to use it and intends to use it and
the officer’s actions will be based on those assumptions and will be in line
with the priority of protecting the public and the police.”
Police officers
also testified that the negotiator would not be employed until armed containment
had been effected and the use of firearms was a last resort. They perceived that
Mr Hay was a real, immediate threat to some of the officers. Furthermore, it was
always an individual decision of an officer whether or not to open fire.
The Coroner in
his summing up to the jury stated:
“... You have heard
more than once about Section 3 ... the whole matter turns on the interpretation
of what is reasonable, of what you believe to ... have been reasonable in the
circumstances ... . You ... must consider all the circumstances, the state of
mind, the conduct of <Mr Hay>, the sense of urgency and the need, if you so find,
for immediate reaction on the part of the officers and in particular, of course,
the officer who fired the fatal shot who had to make a decision.”
The jury found
that “… the deceased died of a bullet wound to the head sustained as a result of
a gun wound received from armed police officers”, and the Coroner entered a
verdict of “lawfully killed”.
On 9 March 1995,
the applicants applied for judicial review of the summing up to the jury by the
Coroner, claiming that he had misdirected the jury by not instructing them that
there could be “unlawful killing” not just through individual failure, but also
through operational failures. The applicants did not dispute the facts which
were presented to the inquest. The applicants stated in their application for
judicial review:
“The reality of this
case is that the only live issue in relation to unlawful killing was the
wholesale operational failure and the lack of control of the ground team. That
was not explored by the Coroner with the Jury ...”
On 16 March 1995
leave for judicial review was refused by Mr Justice Latham. On 8 August 1995 the
application was renewed to the Court of Appeal. This application was adjourned
so that a new ground could be added relating to the report of the PCA.
This fresh
application for judicial review was lodged on 3 January 1996, complaining of the
failure by the Coroner to call the PCA report as evidence at a time when he knew
of its existence. The application was refused on 8 July 1996 by Mr Justice
Popplewell. On 10 February 1997 the application was renewed before the Court of
Appeal, and again refused.
Civil
proceedings
The deceased, Ian
Hay, died intestate. Letters of administration were granted to his mother on 12
June 1995. She executed a Deed of Variation which created a discretionary trust
of the entire residue of the deceased’s estate. The beneficiaries of that trust
included the applicants.
The deceased’s
mother, who may have been dependent on the deceased, died at the end of 1995.
The beneficiaries of her will included the applicants. The residue of her estate
were held by her trustees as an accretion to the discretionary trust created
after Ian Hay’s death.
Legal aid was
originally granted to the first applicant to pursue an action for negligence in
1995.
The applicants
were advised by leading Counsel, Mr Philip Engelman Q.C., in March 1996 with
regard to liability and quantum. Counsel advised that the case could be
distinguished from other cases where liability had not been established against
the police on public policy grounds. Counsel advised:
“The claim on behalf of
the deceased would allege police negligence outside the field of investigations
of crime. In cases such as Hill v. Chief Constable of West Yorkshire
[1989] AC 53 the courts feared that a finding of liability would divert police
manpower and attention from the suppression of crime, and that the ‘cure’ might
be worse than the ‘disease’ in that future police activities may be arranged so
as to avoid litigation.
My view is that the
operation which led to <the deceased’s> death can be distinguished from these
concerns. Firstly it is unlikely that a finding of negligence would lead to
detrimentally defensive policing or to a situation where a police marksman
defers from shooting since no allegations of negligence are made against the
actual firearm officer who shot <the deceased>.
Secondly it is possible
to divide police activity into policy and operational areas. Instances of where
such a division was endorsed was in Anns v. Merton [1978] AC 728. ... The
policy areas give the police a discretion whether to act or not. ... I suggest
that once the Devon and Cornwall police had decided to launch an operation to
disarm <the deceased>, their activities reached the operational stage, and thus
are liable to challenge.
Whilst the distinction
between policy and operational discretion has been criticised, most recently in
Osman v. Ferguson [1993] 4 All ER 344, it cannot be argued here that
public policy factors would negative any duty owed to <the deceased>, and
furthermore, the Devon and Cornwall police made no centralised policy decision
which would have prevented them from fulfilling a duty to the deceased.
There are no public
policy factors which would prevent the police from being potentially liable in
negligence to the deceased, whose death arose from their omissions.”
Counsel went on
to conclude that there was likely to be a duty of care as there was a sufficient
degree of proximity, a special relationship, the harm was foreseeable and it was
fair and reasonable to impose a duty. It could be argued there was a failure to
take reasonable care and a lack of skill shown by the police, and a sufficient
chain of causation. Counsel concluded that the chances of succeeding against the
police were reasonable. However, on quantum counsel said that the damages would
not be great and would depend on whether the deceased’s mother as a dependant
suffered financial loss due to his death up to the period when she died.
On 7 June 1996,
the Legal Aid Board threatened to discharge legal aid on the basis that, “having
regard to the doubtful prospects of success, the value of the claim and the
costs of pursuing it, a fee paying client of moderate means would not continue
the proceedings.” On 3 October 1996, legal aid was withdrawn because “<the
applicant> does not have a cause of action as he is not the personal
representative. In any event, the costs will outweigh the benefit of the
proceedings.” On 11 October 1996 the personal representatives of the deceased’s
estate and the executors of the estate of Mr Hay’s mother issued proceedings
against the Chief Constable of Devon and Cornwall for negligence.
The allegations
of negligence were pleaded as follows:
“The said
shooting was caused by the negligence of the Defendant his servants or agents.
PARTICULARS OF
NEGLIGENCE
In an affidavit
dated 13 November 1996, Charles Metherell, solicitor and administrator of the
deceased’s estate, stated that the administrators did not wish to pursue the
proceedings “… in the light of the advice from Counsel and the lack of support
from the legal aid fund ...”. On 4 December 1996 the High Court gave the
administrators leave to discontinue the proceedings for negligence in the County
Court.
Subsequently the
proceedings were settled by consent on 24 July 1997 with the payment of £10,000
by the Chief Constable. It is not clear how the negotiations progressed. In a
letter to those representing the estate dated 6 June 1997, the Chief Constable
outlined the terms on which the agreement was made, which included the following:
“2. The settlement is
without prejudice to the right of those representing the estate of Ian
Fitzgerald HAY to pursue a petition against the United Kingdom under the
European Convention of Human Rights. …
That notwithstanding, a
large number of individuals discharged their duties honourably and properly. The
Constabulary is still not of the view that any individual failure contributed to
the tragic outcome, given the background to this matter, which is well known by
your firm.”
The police also
paid a sum of GBP 500 to the deceased’s estate to compensate them for the damage
to Crabadon Manor and the sum of GBP 8,941.31 in respect of costs incurred in
the judicial review proceedings.
Since the death
of Ian Hay, the Devon and Cornwall Constabulary have introduced changes to their
approach to firearms incidents. These include:
- training scenarios for armed officers, practised jointly with other police units such as dogs and helicopters;
- trained tactics advisers are on duty 24 hours a day;
- command of an incident of this kind is now conducted by an officer of Chief Inspector or above who has attended and passed a national course conducted at an approved national school.
B. Relevant domestic
law and practice
Civil actions
against the police
The unlawful and
deliberate application of force to another person resulting in that person’s
death is a battery. An action for negligence arises where a defendant who owes a
duty of care to a claimant with the result that the claimant suffers damage,
provided that it was foreseeable that such conduct would cause such damage. Both
battery and negligence are torts.
Pursuant to
section 48(1) of the Police Act 1964 replaced by section 88 of the Police Act
1996, the Chief Constable is vicariously liable for the torts committed by the
officers under his direction and control. Actions for battery and negligence by
a police officer may be taken against the Chief Constable.
Law Reform (Miscellaneous
Provisions) Act 1934
Section 1 provides:
“… on the death of any
person… all causes of action… subsisting against or vested in him shall survive
against, or, as the case may be, for the benefit of the estate.”
The Fatal
Accidents Act 1976
A dependant of a
deceased person killed by accident may claim damages if they were dependent at
the time of the death. The award of damages is based on the evidence provided of
the extent of dependency. Statutory bereavement damages of £7,500 are only
available to the wife or husband or to the parents of unmarried minors. Funeral
expenses may be recovered by a dependant as special damages.
Distress and the
fact of death itself are not such as to constitute an injury in which a cause of
action lies under the law of the United Kingdom.
Criminal Law
Act 1967
The use of
firearms by the police is regulated by section 3 which states:
“A person may use such
force as is reasonable in the circumstances in the prevention of crime, or in
effecting or assisting in the lawful arrest of offenders or suspected offenders
or of persons unlawfully at large”.
COMPLAINTS
The applicants
complain of a breach of Articles 2, 6 § 1 and/or 13 of the Convention.
1. As to Article 2, the applicants state that the killing of the deceased by the police did not comply with the requirements of necessity implied by the words “no more than absolutely necessary” as described in Article 2 § 2. Furthermore, the applicants claim that the failings and inadequacies of the planning and procedure followed also amount in themselves to a breach of Article 2. The applicants state that the PCA enquiry report shows that there were such failings.
2. As to Articles 6 § 1
and 13, the applicants state that they had no domestic remedy, in that there was
no possibility of invoking the Convention in domestic courts, and the fact that
domestic law itself violates Article 2 means that the applicants remained
victims.
THE LAW
The applicants
invoke Articles 2, 6 and 13 in respect of the shooting of their brother, Ian Hay,
by the police.
Article 2 provides:
“1. Everyone’s right to life shall be protected 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…”
Article 6 § 1 in its first sentence provides:
“1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 13 provides:
“Everyone whose rights
and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.”
The Court recalls
that the applicants have settled their claims in negligence against the police
concerning their brother’s death on payment of GBP 10,000 plus legal costs. In
communicating the application, it requested the parties’ submissions on the
question as to whether this deprived the applicants of the status of victims for
the purposes of their application before the Court.
The Government
submitted that the applicants’ acceptance of the offer of settlement provided
them with adequate redress for their complaints. The offer was not made ex
gratia but in settlement of a claim of right and provided a substantial sum
of damages. It was accompanied by an admission that individual police officers
had failed to meet proper standards. Furthermore the offer was accepted by the
estate after receiving legal advice. They also pointed out that the authorities
have taken proper steps to minimise the risk of similar incidents occurring in
the future, indicating that the United Kingdom were not using the compensation
as a means of avoiding compliance with their obligations under Article 2 of the
Convention.
The applicants
pointed out that the settlement agreement in their case had been concluded
“without prejudice” to their right to pursue an application under the European
Convention of Human Rights, and was an essential condition for their acceptance.
This distinguishes their case from those where settlements have been previously
found to deprive the applicants of victim status (referring to nos.
5577-5583/72, Donnelly and others v. the United Kingdom, dec. 15.12.75, D.R. 4
p. 4, and no. 24520/94, Caraher v. the United Kingdom, dec. 11.1.00, to be
published). The Government are therefore estopped from raising the point to
defeat their application. They also disputed that the settlement provided
adequate redress, since the police qualified their reference to poor standards
by maintaining that they still not agree that any individual failures
contributed to the tragic outcome. The applicants’ claim that the operational
and other failures of the police caused the death of their brother has therefore
not been accepted.
The Court
observes, first of all, that the possibility of obtaining compensation for the
death of a person will generally, and in normal circumstances, constitute an
adequate and sufficient remedy for a substantive complaint of an unjustified use
of lethal force by a State agent in violation of Article 2 of the Convention (see,
mutatis mutandis, Donnelly, op. cit. at p. 66). Separate
procedural obligations may also arise under Article 2 concerning the provision
of effective investigations into the use of lethal force, but these are not in
issue in the present case where no complaint has been raised as to the
thoroughness and effectiveness of the inquest into Ian Hay’s death (see eg. Kaya
v. Turkey judgment of 19 February 1998, Reports 1998-I, §§ 86-87, 105).
Where a relative accepts a sum of compensation in settlement of civil claims and
renounces further use of local remedies therefore, he or she will generally no
longer be able to claim to be a victim in respect of those matters (see Donnelly,
op. cit. at pp. 86-87, and the above mentioned Caraher decision).
The applicants
have submitted that the Government are estopped from relying on the settlement
as a basis for rejecting the case, as their police authorities entered into the
settlement agreement with them on a “without prejudice” basis. The Court notes
however that Government did not raise the argument, but were responding to the
question expressly put to the parties by the Court.
The Court would
observe that Contracting States cannot, on their own authority, put aside
compliance with the rules of admissibility stipulated in the Convention (see,
mutatis mutandis, nos. 10416/83, dec. 17.5.84, D.R. 38 p. 58 and 9990/82,
dec. 15.5.84, D.R. 39 p. 119). Nor does the Court’s competence to apply those
rules depend on objection being raised by the respondent Government concerned.
It would run counter to the object and purpose of the Convention, as set out in
Article 1 - that rights and freedoms should be secured by the Contracting State
within its jurisdiction - and thus interfere with the primarily subsidiary
nature of the Court’s role, if applicants, even with the acquiescence of State
authorities, were able to invoke the Court’s jurisdiction by dispensing with the
available and effective domestic mechanism of redress. The applicants in the
present case could have pursued their claims for negligence and obtained the
domestic courts’ findings as to the alleged inadequacies and failings of the
police officers and their causal link with their brother’s death. They chose,
however, to settle those proceedings without obtaining such a determination. It
is not for the Court, in those circumstances, to undertake the role of a first
instance tribunal of fact and law.
The Court does not consider that there is any element of abuse in the terms or procedure of settlement accepted by the applicants, which would render it necessary for the Court to pursue its examination of the case in order to maintain the effectiveness of protection provided by the Convention. There is no indication that the Government have attempted to avoid compliance with their obligations under the Convention by means of the mere payment of money. There is no indication that the alleged breach in this case was either authorised by law or part of an administrative practice, whereby the higher authorities of the State pursued a policy authorising or tolerating the impugned conduct. It may be noted that the police authority concerned in the incident have taken steps to improve training and control in respect of future incidents.
Having regard to
the considerations above, the Court finds that in bringing civil proceedings for
negligence in respect of the death of their brother the applicants have used the
local remedies available and that in settling their claims in those proceedings,
and in accepting and receiving compensation, the applicants have effectively
renounced further use of these remedies. They may no longer, in these
circumstances, claim to be victims of a violation of the Convention, within the
meaning of Article 34 of the Convention.
This application
must therefore be rejected as being manifestly ill-founded pursuant to Article
35 §§ 3 and 4 of the Convention.
For these reasons,
the Court, unanimously,
DECLARES THE
APPLICATION INADMISSIBLE.
S. Dollé J.-P. Costa
Registrar President