Precedent set for UK Government to whitewash history of state authorised killings through GRIBBEN vs United Kingdom judgment

My intention is to explore the reasons for the judgment in Gribben v. United Kingdom (Application no. 28864/18). I want to provide context to the judicial decisions through an exploration of prior case law and the mechanisms of law which were used to come to these decisions.

Case facts

Gribben v. UK, centres around the killing of Martin McCaughey, an active Irish Republican Army (‘IRA’) volunteer on 9 October 1990. Together with Desmond Grew, a fellow IRA member he was shot dead by on duty British Army soldiers from a specialist unit who were providing support to the Northern Ireland Police Force (then the ‘Royal Ulster Constabulary’ or ‘RUC’). The soldiers, nine in total, had been carrying out a night-time surveillance when Mr McCaughey and Desmond Grew, appeared with AK47 rifles wearing gloves and balaclavas. Within the course of approximately ten to fifteen seconds, the soldiers fired a total of 72 shots. No shots were fired by the deceased. These shootings appeared at a time when several similar lethal operations were conducted by the Royal Ulster Constabulary (‘RUC’) and which fuelled allegations that the security forces had a ‘shoot to kill’ policy in Northern Ireland.

The RUC initiated an investigation into the deaths and the soldiers involved were interviewed. Subsequently, on 2 April 1993, the prosecuting authorities issued a direction of no prosecution in respect of the soldiers involved in the shooting stating that the evidence was not sufficient to prove that the soldiers had not been acting in self-defence.

The killing was said to have been justified at the time and this was upheld by the Inquest proceedings held in 2012, stating lawful killing (An inquest is an inquiry into a death. It is a mechanism used in the UK to establish the detail surrounding a death, such as the name of the deceased and how they died. It is used as a legal instrument that allows the death to be registered. A coroner will hold an inquest if after an initial inquest the cause of death is still unknown or the death is violent or unnatural).

In the present case, the applicant, Sally Gribben, is the sister of Martin McCaughey.

Judgment

Gribben v. UK is an extension of an earlier case, McCaughey and Others v. the United Kingdom (Application no. 43098/09), which was brought by three Irish nationals Brigid McCaughey, Pat McGrew and Letitia Quinn, the first, second and third applicants, in July 2009. This case mainly complained under Article 2, regarding the shooting of their relatives with a focus on an unreasonable use of lethal force and a failure to properly investigate the relevant operation focusing on the time delay between the facts and the investigation. The Court found in favour of the UK. Crucially for the second case the facts remained the same as in the first, thus the Court could not deliberate the same facts again. The Court had to therefore focus on the conduct of the inquest which was raised in the second case.

The applicant petitioned for the case to be brought in front of the European Court of Human Rights (‘ECtHR’) in 2018. She complained under the procedural aspect of Article 2, the right to life, of the European Convention on Human Rights (‘ECHR’) that the authorities had failed to conduct an effective investigation into the circumstances of her brother’s death. In particular, she highlighted five issues with the Inquest: The Coroner’s failure to disclose potentially relevant material to the next of kin of the victim; the Coroner’s failure to take adequate measures to secure the recall of an eye witness; the conduct of the inquiry before a jury; the Coroner’s failure to discharge a juror who was believed to be partial; failings in the Coroner’s questions, directions and summations to the jury.

The Court stressed that it did not intend for an Article 2 Investigation to be considered in a piecemeal fashion. They emphasised the need to stay away from analysing each and every challenge to the inquest procedure. This was put down to the fact that the ECHR should become a Court of fourth instance.

The Court found that the inquest had undoubtedly been thorough, with a scope which had extended beyond the actual deaths and their causes, encompassing ‘broader questions relating to the planning and management of the operation’. Quite remarkably, after 20 years, all of the important witnesses, including all but one of the soldiers involved in the shooting, had given evidence. It identified certain weaknesses in the inquest, most notably the failure to disclose to the next of kin material relating to other fatal shootings the soldiers had been involved in, the failure to recall one of the soldiers involved in the shooting to give further evidence, and the coroner’s decision not to further investigate claims that a juror had been hostile towards the next of kin. However, it did not consider that those weaknesses, either individually or cumulatively, had undermined the inquest’s meeting of the investigation requirements of Article 2, namely to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. The Court therefore declared the application inadmissible as manifestly ill-founded.

The decision was given by seven judges who unanimously, rejected the application as manifestly ill-founded and declared the application inadmissible.

Analysis

In its decision in Gribben vs UK, the UK courts decided against the applicant, stipulating that the soldiers involved in the case had the right to use deadly force in the case of self-defence. In order to understand the outcome of Gribben, it is imperative to investigate the meaning and function of the procedural obligation under Article 2 of the European Convention on Human Rights.  Article 2 reads, “The nature and the scope of the procedural obligation under Article 2 of the Convention to punish those responsible for breaches of the right to life in cases concerning the use of lethal force by State agents.” How the Court interprets the components of the Article and how they are relevant to the Gribben vs UK-case is essential in understanding the outcome of the case. I would therefore like to elaborate on prior rulings related to Article 2, which have helped shape the opinion of the Court.

– Article 2 investigations specifically secure the operational application of domestic laws which protect the right to life. Additionally, when those cases involve state agents or bodies, it is essential to guarantee culpability for deaths which happen within their sphere of activity.

A procedural obligation under Article 2 of the Convention was articulated in McCann and Others v. the United Kingdom. “A general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities.”

McCann sheds light on the procedural necessities which confronted the UK authorities. It was essential for them to offer a mechanism for reviewing the lawfulness of the killing which was carried out by state authorities, on behalf of the state. In plain terms there needed to be a full and comprehensive investigation into the killing that met the standards laid out in Article 2.

The obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, necessitates that there should a full and effective state investigation when a person is killed as a consequence of the ‘’Use of force by, inter alia, agents of the State.”

Further, in Kaya v. Turkey, the Court found a violation of Article 2 under its ‘’procedural limb’’. In Kaya the applicant’s brother was killed by Turkish security forces in uncertain circumstances. It believed that the case, “could not be considered a clear-cut one of lawful killing which could be disposed of by means of minimal formalities and that the investigation had been seriously deficient”. The Court highlighted that the “investigating authorities had proceeded throughout on the assumption that the deceased was a terrorist who had been killed in an armed clash with security forces.”

The similarities between this case and Gribben are striking. Apart from the State security forces carrying out the killing, the event took place in what could be described as a conflict zone. In Gribben the applicant’s brother was killed whilst on active duty in an area where conflict was commonplace. The Court held that “neither the prevalence of armed clashes in the region nor the high incidence of fatalities could dispense the authorities of the obligation under Article 2 to ensure that deaths arising out of clashes with security forces were effectively investigated”.

The Kaya-case shows the obligation of the state to provide a comprehensive investigation into incidences which have arisen when state security forces carry out a killing. Gribben clearly shows the need for the UK authorities to authorise a full and transparent inquiry into the killing. The ECtHR ruled that this occurred and despite some shortcomings in the inquiry, the scope of the inquiry was deemed to be adequate by the standards of Article 2.

Gribben’s downfall was the Court’s acceptance that the inquiry was adequately sufficient by the standards of Article 2. This is utterly at odds with the required standard of an Article 2 inquiry as the initial inquiry conducted by the UK was insufficient, conducted with numerous shortcomings. This does not seem to be an equitable outcome. This becomes especially evident when viewed in light of the Kaya outcome, where the investigation by the Turkish authorities was deemed inadequate. How can so many individual issues not amount to an aggregate of failure in such a serious matter? The right to life as protected by Article 2, requires the highest possible standards of investigation and any shortcomings in isolation, or in aggregate, and must be viewed as enough to hold any investigating authority accountable. I feel that the numerous shortcomings in the Gribben investigation had a significant impact on the outcome of the inquiry conducted by the UK.

In Oğur v. Turkey a night-watchman working at a site belonging to a mining company was killed by security forces attempting to subvert an illegally armed group. The Court held “that the investigative duty under Article 2 of the Convention should be “capable of leading to the identification and punishment of those responsible”.

Oğur highlights the need for an investigation to be carried out by the state which is of the necessary standard and is capable of leading to the identification and punishment of those responsible. The language of this section of Article 2 is hugely important, in that, it provides a standard by which the quality of the investigation held in 2012, by the UK government can be measured. Was it of the requisite standard as indicated by Article 2? Was it capable of leading to the identification and punishment of those responsible?

It is argued that there were failures in the investigation. These are the main arguments put forward in Gribben against the UK government’s conduct. Gribben highlights five main issues with the inquiry which suggest failings in the UK’s implementation of Article 2.

Namely, the disclosure of material to the next of kin; the recall of soldier; the conduct of the inquest with a jury; the decision not to discharge a juror; the Coroners questions; directions and summations to the jury.

These factors call the effectiveness of the inquiry into question. It is hard to establish whether any of these factors alone would affect the eventual outcome of the case, however, it is safe to suggest that the factors in aggregate could have a negative impact on the applicant’s case. The EtCHR decided these factors could not be considered to have impacted upon the rights afforded by Article 2. This is a remarkable outcome and one that is flawed in my opinion. It is hard to understand how a panel of the most senior judges in Europe could conclude that so many issues in combination could not be considered to have altered the outcome of the UK inquiry.

Going forward, it appears that the standards of an Article 2 investigation could be somewhat limited due to the precedent set in Gribben. The effectiveness of the 2012 inquiry appears to be beyond compromised yet the ECtHR unanimously adjudged the effectiveness of the inquiry to be of the required standard. This could have a grave impact upon cases involving state killings whereby states could use the lesser standard of Article 2 as a shield to justify inadequate investigations or compromised state backed inquiries. Unfortunately, a difficult and ugly precedent has been introduced with the outcome in Gribben. States have the luxury of using this judgment to their advantage when justifying or protecting themselves against accusations of unlawful state killings. This is a particularly dangerous precedent too when the ECtHR seems to be the last bastion of Justice for protection and accountability against unlawful state killings.

The current UK Government, led by Prime Minister Boris Johnson attempted to introduce legislation completely outlawing any prosecution of state security forces for ‘Troubles Era’ unlawful killings. This would provide a complete amnesty for any soldier who has killed on behalf of the state leaving a section of UK citizens with no protection or right to justice from unlawful state killing. In the same breath, this demonstrates an irrefutable bias by a government with a vested interest in empowering its own security forces and bolstering support through egregious policies that fundamentally contravene basic human rights. The current UK Government has now retreated from the original plan, and revealed a version that will make immunity conditional on cooperation with a new ‘Independent Commission for Reconciliation and Information Recovery’.

If the ECtHR is not able to provide the required level of protection through law, then the people affected by unlawful state killings from various communities will be never see justice through the 1000-year-old legal system that is supposed to offer protection from state authorities acting in bad faith. This lack of justice which is supposed to be the most basic entitlement afforded to UK citizens as well as the justice afforded through the jurisdiction of the ECtHR, exhibits a fundamental failure to protect individuals against heavily resourced and powerful entities who are able to operate with impunity using the jurisprudence of the Courts as their shield. This is particularly important when certain sections of the community within the UK have lost faith that they will be afforded the same protections as other citizens of the community.

 Colum Eastwood, “the Social Democratic and Labour party leader and MP, said Boris Johnson’s administration lacked credibility on the issue. “There is no one who has faith in this government to do the right thing by victims and survivors.””

Conclusion

The Court highlighted serious issues with the 2012 inquest but it was satisfied that the investigation into the shooting had met the requirements under Article 2. Namely the need to investigate conduct by state actors which infringe on the right to life. Crucially, the Court noted that the inquest had extended to “broader questions relating to the planning and management of the operation.”

A completely independent inquiry conducted into the procedures and mechanisms of the UK inquiry shows that the 2012 inquiry was deemed to be of a sufficient standard to meet the requirements of Article 2 of the European Convention on Human rights, according to the ECtHR,. The most senior Judges in Europe unanimously agreed that the outcome was fair and equitable despite a strong argument against the balance of the UK Inquiry. In Gribben, the inquest was irrefutably thorough, with a range which stretched further than matters directly contributing to the deaths and which incorporated extensive questions connecting to the preparation and scope of the action.

Personally, it is hard to fathom how seven of Europe’s most senior judges can minimise the bias shown by a member of the jury and conclude that it doesn’t affect the outcome of the inquiry. Surely this alone is enough to wipe out the potency of any judgment made by a supposedly neutral jury. This one factor should contaminate any inquiry to the point of collapse, as it would in any sitting Court of law, in the rest of the United Kingdom. The outcome of the European ruling is not only damaging for the individuals who were killed by a security force that is supposed to protect citizens of its own country, regardless of their political affiliation, but also for future cases that come before the Court in similar circumstances. This opens the door for totalitarian governments, or governments with authoritarian leanings, to act with impunity and use legal precedent to justify any killings perpetrated under their authority.

The time delay would irrefutably affect the memory of any witness, never mind a series of witnesses who may have suffered from trauma leading to a distorted recollection of events. The Court again seemed to minimise this factor just as the initial in the 2009 case did, and the 2012 inquiry.

In conclusion, Gribben has opened the door for blatant miscarriages of justice using a weak interpretation of Article 2 as a mechanism to facilitate this outcome. This could lead to further killings by countries who will use legislation as a protective shield from accountability or repudiation.

Gribben, has set a worrying and dangerous precedent, providing a safe haven for authoritarian governments to perpetrate criminal acts, unchecked and unstopped.