Fatal Force by Agents of State

2 May 2001

The case was brought by the families of several men killed by SAS soldiers in an incident where a Police Station in Northern Ireland was attacked by armed members of the IRA in May 1988. The authorities had prior notice and were ready and waiting. The families believed that there was a "Shoot to Kill" policy and that the victims who were involved in the attack could have been arrested instead of shot, and that the victims who were innocent passers by would not have been mistakenly taken as being involved if there had not been such a policy. Art.2(1) of the European Convention on Human Rights is the "Right to Life". It has been held to require a thorough, impartial and effective investigation when persons have been killed by use of force by agents of the state (see, eg, McCann and Others v UK (1995) 21 EHRR 97.) In holding that there had been a violation of Art.2(1), the Court in Kelly found that even the combination of the investigation carried out by the RUC (insufficiently independent), the Inquest into the deaths (too limited in scope) and the process of deciding whether or not to prosecute carried out by the DPP (insufficiently open to public scrutiny) did not meet this requirement. There are three important distinctions between the position in Northern Ireland and that in England and Wales: First, unlike the position in England and Wales, an Inquest in Northern Ireland is unable to conclude that the cause of a death was "unlawful killing" or to append recommendations to their verdict; it is limited to determining the bare facts. Secondly, in England and Wales, where there are grounds for believing that a prosecution should normally follow such a death (eg where there had been an Inquest verdict of unlawful killing), then the DPP would be expected to give full reasons for not prosecuting (see, eg, R v DPP, ex parte Manning [2000] 3 WLR 463). Finally, in England and Wales, the decision of the DPP is vulnerable to judicial review (see, eg, R v DPP, ex parte Jones, Unreported, 22 March 2000); in Northern Ireland presently it appears not to be. Notwithstanding these differences, it is probably the case that Kelly has increased the stringency of the requirement that there be an investigation complying with the relevant standards (see paras 91-98). One particular aspect of relevance to the criminal law is that where a death has occurred as a result of force by the agent(s) of the state (eg, a death during an arrest or subsequent detention) the investigation by the Police may need to be discrete from the Force involved (see para 95), and the decision of the DPP on whether or not to prosecute may need to be given with full reasons in more cases than the ruling in Manning would suggest has been necessary hitherto (see para 57).