Paragraph 42, at the top of page 18. That links in with what Tony Bueno was saying about the possibility and desirability perhaps of a tribunal of inquiry in England. Each of the states has an obligation to vindicate the right to life under Article 2. If, as there is, a serious allegation and apparently reason to believe that there was some form of collusion between United Kingdom authorities and the bombers in question, there certainly seems to us enough to argue that the British State may have an obligation to vindicate the right to life under Article 2 of the convention by setting up not necessarily a tribunal of inquiry but a sufficient, effective, official investigation into the circumstances of the 1974 bombing, with particular reference to the collusion and involvement of the British authorities or agents. That is certainly within the classic formulation of the obligation to conduct an official investigation given the state involvement.
If we step aside from that question of state involvement and look at the Irish State's position and whether it has an obligation, the difficult question is what are the criteria which trigger the obligation to set up an official inquiry, absent the factor of state involvement in the killings. The courts have not set out in any detail what are those criteria, mainly because the facts they have been concerned with in the cases that have come before them have involved state killings or killings involving state agents.
At the bottom of page 18, paragraph 44, we quote from Lord Woolf's judgment in the Amin case, where he stresses the extent to which each case depends upon its own facts. He says that there is plainly no duty on the face of the convention to investigate a death. It is clear that such a duty has been constructed or developed by the court at Strasbourg out of a perception that without it the substantive rights conferred by Article 2 would or might in some cases be rendered nugatory or ineffective. The duty to investigate is adjectival to the duty to protect the right to life and to the prohibition of the taking of life. It follows, Lord Woolf continues, that by its nature it cannot be a duty defined by reference to fixed rules. It only has life case by case, contingent upon what is required in any individual instance where the substantive rights need protection.
Lord Woolf also noted:
Across the spectrum of possible Article 2 violations, there are classes of case which can readily be distinguished. One class is that of allegations of deliberate killing - murder - by servants of the State.
A second is that of allegations by gross negligence - manslaughter - by servants of the State. A third is that of plain negligence by servants of the State leading to a death or allowing it to happen. In the context of any of these classes, there exists the lamentable possibility that the State has concealed or is concealing its responsibility for the death. That possibility gives rise to the paradigm case of the duty to investigate. The duty is in every instance is fashioned to support and make good the substantive Article 2 right.
That is probably the key sentence: "The duty ... is fashioned to support and make good the substantive Article 2 rights", in other words, the right to life itself, the ancillary right being the right to the investigation. He continued, "This approach sits with a Strasbourg jurisprudence, whose character has always been essentially pragmatic". The primary way in which the right to life is vindicated in the case of someone who is already dead is by bringing the perpetrator to justice. It is about carrying out the necessary investigations that will lead to a prosecution for murder, manslaughter or even a negligence action. One of the issues the sub-committee has to consider, therefore, is to what extent would a tribunal of inquiry assist in a practical way in actually producing evidence which might enable the DPP to bring prosecutions in this jurisdiction against people responsible and in circumstances where some of those people might be outside the jurisdiction and who may, of course, have to be the subject of extradition and so forth.
That is not the only criterion. An obvious purpose of an official investigation which does play the role in vindicating the substantive right is to enable the State to learn lessons from the tragedy to avoid such tragedies in the future. In paragraph 45, we quote Lord Woolf when discussing death in State custody:
The State owes a present duty to minimise the risk of such a calamity, even if it cannot be altogether extinguished. The common law would impose such a duty, if it could find an appropriate litigious framework in which to make it good. Now, however, it is enough to say that such a duty lies within the scope of Article 2. When such a death takes place, the procedural duty to investigate is in our judgment undoubtedly engaged. That is not to say what is required to satisfy the duty is necessarily the same in a case where the death has allegedly been allowed to happen by virtue of negligence on part of State servants, as in the case where it is said the State servants have themselves killed the victim by the use of unlawful force.
Therefore, one has to look to see what is the essential purpose of an investigation under Article 2. The Jordan case is the key case in the UK in that regard in which the RUC had shot and killed a person after a car chase and his father alleged there had been no effective investigation. In the case the European Court of Human Rights said:
The obligation to protect the right to life under Article 2 of the Convention ... also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force ... The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life [that means the prosecution for murder or manslaughter] and in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve the purposes may vary in different circumstances.
A critical question is the extent to which it will facilitate criminal prosecutions, the point we make in paragraph 47. This, in turn, feeds into the points made by Mr. Bueno on the possible difficulties that might be faced on the public immunity front and whether the necessary evidence could, in fact, be maintained to justify a criminal prosecution in this jurisdiction.
In paragraph 48 we consider the question of the lapse of time between the bombings and now. In the Jordan case a variety of detailed requirements were set out which have sometimes been taken as being written in stone, as if they are what an inquiry must do and meet. Lord Woolf has made clear that the Jordan requirements, as they are sometimes called, were simply a reflection of the facts of that particular case and may differ from case to case. In the Jordan case the court stated, "However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention". In other words, there is a duty to act promptly in this matter. Lord Woolf stated:
They cannot leave it to the initiative of the next of kin, either to lodge a formal complaint or take responsibility for the conduct of any investigative procedures.
The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence ... any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.
This poses two different questions. One was whether there was a failure in 1974 and 1975 to carry out the sort of effective investigation that may have been required, either by the UK state - most probably - or conceivably by the Irish State, particularly in so far as the failure to act on warnings and so on may be involved. The second and separate question is whether there must now be such an official investigation. Obviously, we cannot fulfil the requirement that this investigation be prompt because it is now 30 years later but an element of pragmatism and practicality must be taken account of.
The sub-committee needs, as we say in paragraph 50, to consider to what extent it may realistically be said that a tribunal of inquiry would succeed in having available to it a better quality of eye witness or forensic evidence than Mr. Justice Barron had, bearing in mind that Mr. Justice Barron, as I recall from the report, expressed his satisfaction with the co-operation he got from the Irish authorities. The purpose of the tribunal is to make good the deficiency in the co-operation from the Northern Ireland authorities. That is why it is relevant to ask how much better evidence will be got from Northern Ireland by such a tribunal.
The sub-committee can, obviously, consider who can be compelled to give evidence within this jurisdiction without being trammelled by security-type considerations. In paragraph 50, there is a quote from the Jordan case. After pointing out that no specific procedures or model of inquiry is required, the court stated:
If the aims of fact finding, a criminal investigation and prosecution are carried out or shared between several authorities, as in Northern Ireland, the court considers that the requirements of Article 2 may nonetheless b[e] satisfied if, while taking into account other legitimate interests such as national security or the protection of material relevant to other investigations, they provide for the necessary safeguards in an accessible and effective manner...
While this is primarily about the fact that there can be different modes of inquiry tailored to the circumstances of the particular case, it is interesting to note that other legitimate interests such as national security and the protection of material relevant to other investigations are also acknowledged.
In the Amin case, Lord Woolf put it as follows:
The nature and scope of an adjectival duty, which by definition is not expressly provided for in the Convention, must especially be fashioned by the judgment of the domestic courts as to what in their jurisdiction is sensibly required to support and vindicate the substantive Convention rights.
The reference to what is sensibly required and the references to pragmatic flexibility mean, in our view, that the decision on whether the duty to set up an investigation is triggered does depend on an assessment of what can practically be achieved. In this respect we differ slightly with Mr. Mansfield who drew attention in his submissions to the sub-committee to what he called almost the moral imperative for setting up such an inquiry. The mere fact that it might be futile was not sufficient reason, in his view, to decline to set up a tribunal of inquiry. We would not quite go that far or much distance along that way. We think the practicality and possible futility of a tribunal - we are not saying it would necessarily be futile, but one might form the view that it was not likely to be a practical or useful exercise - is a very strong consideration in deciding whether there is a duty under Article 2 of the convention. This is something a court would consider in deciding whether the Irish State was in breach of any Article 2 duty.
In paragraph 53 on page 23 we identify two or three other factors that the courts have mentioned as possibly triggering the duty to investigate. We have already pointed out the lesson-learning factor of the tragedy and the need to try to avoid such an event in the future. There is also value in the next of kin having the comfort of knowing that an attempt has been made to investigate, as far as is reasonably practical, how and why these deaths occurred. This is a substantive and important value that cannot be underestimated in any shape or form.
Third, there is the general value of reassuring the public that everything has been done to bring the perpetrators to justice, ensuring confidence in the rule of law and that State security and order can be maintained. Lord Woolf referred to those points as follows:
What is required will vary with the circumstances. A credible accusation of murder or manslaughter by state agents will call for an investigation of the utmost rigour, conducted independently for all to see. An allegation of negligence leading to death in custody, though grave enough in all conscience, bears a different quality from a case where it is said that the state has laid on lethal hands.
The procedural obligation promotes these interlocking aims: to minimise the risk of future like death; to give the beginnings of justice to the bereaved; to assuage the anxieties of the public. The means of their fulfilment cannot be reduce to a catechism of rules. What is required is a flexible approach, responsive to the dictates of the facts, case by case.
The Amin case - which was two cases, Amin and Midleton - provides an illustration of this. Mr. Amin was the uncle of Mr. Mubarak who was put into a cell with a racist prisoner who bludgeoned him to death with the wooden leg of a table. A variety of inquiries were established. The Director General of the Prison Service wrote, I think on the same day of the death, in a moving letter which was reported in the case report, acknowledging full responsibility on the part of the Prison Service. There was a police investigation as to whether anybody should be prosecuted for manslaughter and a wide-ranging internal prison inquiry. The Commission for Racial Equality also set up an inquiry, although the family was not permitted to participate in that to any extent and it was held in private rather than in public. Nevertheless, the court held that collectively, those inquiries amounted to sufficient satisfaction of the Article 2 duty.
The Midleton case concerned a man who hanged himself in a prison cell. The coroner's inquest was the form of inquiry there and traditionally under the coroner's rules, the coroner's jury does not address the issue of negligence, it only address the how and why of the cause of death. In this case the court said that in order to give a effect to Article 2, the coroner's jury should be asked to consider the question of negligence because all of the rules and so forth have now to be interpreted in the light of the European Convention, but if so interpreted, that coroner's inquest was sufficient to vindicate the ancillary right to life, in other words, the duty to investigate. The case is illustrative of the fact that there can be many different forms of inquiry which may satisfy, on the facts of any individual case, the duty to investigate.
Finally there is, perhaps, a more general and philosophical point we make which is that when we talk about getting to the truth of the matter, there are different levels and layers of the truth and whether what is really required is accountability on the part of who was politically responsible, accountability and identification in terms of pointing the finger at the individuals who carried out the bombing and so on. We finish with an extract from an interesting article by Angela Hegarty, entitled Dealing with the Past - the Government and Memory, Public Inquiries and the Limits of Justice in Northern Ireland, published in the International Law Journal last year. The article mainly deals with the issue of the conflict between the right to life and the duty to investigate for the victims of bombings and so on and terrorism versus the right to life of witnesses before tribunals who say their own lives will be in danger if they give evidence. In that context the article states:
The notion of truth is a difficult one, both philosophically and practically. The concept is particularly difficult in the context of a conflict where even the nature of the conflict, that is, what the conflict was about, is contested. This is complicated further by the lapse of 30 years in a conflict where law was employed by the state to further its political ends. Truth is therefore a particularly thorny concept. This is because what people often mean when they use the term "truth" is acknowledgement. What people frequently want from a truth process is an acknowledgement of the violation of their rights, an admission that what was done was wrong. This is also important for the purpose of accountability and reconstruction. Without admitting the wrong done one may not prevent the future from replicating the abuses of the past. In consequence, deciding what is meant by truth should be the first task of any truth process.
This raises some difficult questions. For example, how much information does one need to have in order to be satisfied that one has the truth? In Northern Ireland, for example, is it sufficient to know that the British Army shot one's sister or that the IRA killed one's father, or is it necessary to have greater detail? Perhaps one requires the name of the combatant who carried out the killing or the identity of the politician responsible for the policy being carried out.
These are the kinds of factors also to be considered in deciding whether or not the sub-committee considers it appropriate to recommend setting up a tribunal.
