CASE OF McDONNELL v. THE UNITED KINGDOM
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
6. The applicant was born in 1939 and lives in County Antrim. 7. On 6 January 1996 the applicant’s son, Mr James McDonnell, was remanded in custody to Crumlin Road Prison in Belfast. Since that prison had to close, all prisoners were to be transferred on 30 March 1996 to HMP Maghaberry. 8. On the morning of 30 March and prior to his transfer, Mr McDonnell was informed that his father had died suddenly during the night. Upon hearing the news, the applicant asked to be moved to a single cell. At 10.50 a.m. he was transferred to HMP Maghaberry. His cell was not ready on arrival so he waited in the recreation area. When a prisoner officer informed him that he would share a cell, Mr McDonnell said that he would wreck it. A principal officer was informed. 9. At 12.15 p.m. Mr McDonnell was informed his cell was ready and he said that he would hit the first prisoner who came into it. The principal officer was informed. 10. At 2.10 p.m. another prisoner, with two prison officers, arrived to share the cell. Mr McDonnell said that he wanted to be left alone. He left the cell and announced that he was going to the Punishment and Segregation Unit (“PSU”). There was then a scuffle between several prison officers and Mr McDonnell, which resulted in his being wrestled to the ground and physically restrained. He was brought to a standing position and, while still restrained, was taken to the PSU at approximately 2.20 p.m. A body search was carried out at the PSU with his consent. He was also examined by a medical officer, who noted that he had suffered bruising and grazing and was experiencing discomfort in his chest. The medical officer left at approximately 2.30 p.m. Statements later taken from prison officers and prisoners diverged as regards, inter alia, the circumstances of the incident, the level of restraint used and whether Mr McDonnell had been beaten. 11. At 3.45 p.m. on the same day Mr McDonnell was found unconscious in his cell in the PSU having suffered a heart attack. A number of unsuccessful attempts were made to resuscitate him. He was declared dead at 4.15 p.m. 12. On 30 March 1996 the first autopsy was conducted by Professor Crane, the State Pathologist for Northern Ireland. Professor Crane noted that Mr McDonnell had suffered a fracture to the hyoid bone in the neck, consistent with being grasped by a hand, and that it appeared that Mr McDonnell had suffered a heart attack some 12-24 hours prior to his death. He found that: “[the earlier heart attack] ... could ... have precipitated a fatal upset in the heart rhythm at any time ... [T]he possibility that the stress of the incident shortly before his death played some part in the fatal outcome cannot be completely excluded.” 13. Professor Crane’s report was sent to the Coroner in April 1997. 14. A further autopsy was carried out on 2 April 1996 by Professor Vanezis. Professor Vanezis reported that Mr McDonnell’s thyroid cartilage was also fractured and that there was bruising to the area. He could not exclude that stress suffered while being restrained had contributed to the cause of death. 15. An initial copy of the report was provided to the Coroner in March 1997. A copy was sent by the Coroner to Professor Crane for consideration in April 1997. Having considered Professor Crane’s autopsy, Professor Vanezis produced, on 26 June 1997, a supplemental report confirming his own previous findings. 16. The Northern Ireland Civil Liberties Council requested a report from Dr Kirschner of the International Forensic Programme, Chicago. Dr Kirschner considered the reports of Professors Crane and Vanezis as well as other material including statements from prisoners in the deceased’s cell block. Dr Kischner’s report of 7 September 1997 concluded: “[I]t is my opinion within a reasonable degree of medical and scientific certainty that the injuries that James McDonnell suffered approximately one hour prior to his death were a direct and proximate cause of his death. It is furthermore my opinion that the cause of death should be recorded as: Myocardial Ischaemia due to Multiple Blunt Trauma Injuries and Near-Asphyxiation.” 17. He was of the view that Mr McDonnell’s death should be classed as a homicide. 18. A copy of Dr Kirschner’s report was provided to the Coroner, together with a final copy of the report of Dr Vanezis, on 17 May 1999. In view of its controversial nature, the Coroner sent Dr Kirschner’s report to Professor Crane and to the police for their consideration. The police referred the matter to the Director of Public Prosecutions (“DPP”) and the DPP requested a further report from Professor Crane. The latter recommended that a second opinion on Mr McDonnell’s cardiology history be requested from Professor Knight. The Coroner requested a report from Professor Knight in June 1999. 19. Professor Knight reviewed the above three reports as well as primary autopsy data. On 30 June 1999 he completed his report in which he agreed with the reports of Professor Crane and Vanezis. Professor Knight concluded that the immediate cause of death was a fatal heart attack, but he considered that the emotional and physical effects of the prior restraint could have been a contributory or precipitating factor. He considered the report of Dr Kirschner to be flawed in both fact and opinion. 20. A copy of Professor Knight’s report was provided to the Coroner in July 1999 and sent immediately to the police, the DPP, Professor Crane and the applicant’s solicitors. 21. Meanwhile, an investigation into Mr McDonnell’s death was commenced by the Royal Ulster Constabulary (“RUC”). Twenty-one statements were taken from prisoners in March and May 1996. Eighteen prison officers were interviewed and statements were taken from eight of them in March 1996. Following the first autopsy, the eight officers were again interviewed under caution about, inter alia, the injuries noted on the deceased’s body. 22. On January 1997 a file was presented to the DPP. On 16 May 1997 the DPP gave a “no prosecution” direction. 23. The DPP reviewed his decision in 1999 on receipt of the report of Professor Knight (see paragraphs 18 and 20 above), but on 4 August 1999 gave a further “no prosecution” direction. 24. Following an inquiry from the applicant’s solicitor in May 2002, the DPP informed her by letter of 5 August 2002 of his decisions of 1997 and 1999. 25. On 8 November 2000 the applicant issued civil proceedings against the Prison Service of Northern Ireland. It appears that the writ has never been served. 26. The Police Service Northern Ireland (“PSNI”) replaced the RUC in 2001. In 2004 the Serious Crime Review Team reviewed the original investigation and concluded that extensive research into the case had not uncovered any new evidential material or investigative opportunities. 27. In 2001 the applicant made a complaint to the Police Ombudsman about the investigation into her son’s death. In February 2002 investigators from the Ombudsman’s office met with Professor Vanezis to discuss certain prisoners’ statements. On 2 May 2003 Professor Vanezis provided a further report to the Ombudsman confirming his view that Mr McDonnell had died from a heart attack but that stress relating to the restraint had contributed to his death. 28. The subsequent conclusions of the Ombudsman were as follows: “The Police Ombudsman has reviewed all the police documentation relating to the investigation into James McDonnell’s death. This includes the subsequent reviews undertaken by PSNI. The investigation into the death of James McDonnell was thorough and complete. The family of Mr McDonnell were not kept up-to-date with the investigation. This was not uncommon in 1996. However, with the advent of the emphasis on Family Liaison in any investigation into a sudden death, it is hoped that different standards would be applied today. Whilst the investigation was thorough and the DPP directed no prosecution against any of the prison officers involved in the restraint of James McDonnell prior to his death, some of the injuries suffered by James McDonnell have never been satisfactorily explained. This is particularly true of the injuries to Mr McDonnell’s throat. The police investigation was not able to properly deduce which of the prison guards, if any, may have inflicted the injuries, primarily the fracture of the hyoid bone. It is hoped that the inquest will allow the family of Mr McDonnell the opportunity to seek the answers to the questions that they have had since 1996.” 29. Meanwhile, following the decision of the DPP in 1997 not to bring any criminal prosecutions (see paragraph 22 above), the inquest was listed for a hearing on 2 February 1998. By letter dated 7 January 1998 the applicant’s solicitor sought an adjournment to await the outcome of pending judicial review proceedings concerning entitlement of family members of a deceased to legal aid at inquests (Sharon Lavery v. Secretary of State and Legal Aid Department). The Coroner adjourned the inquest until May 1999. 30. In October 1998 the Coroner wrote to the Court Service to inform them that inquests, including the inquest into the death of the applicant’s son, were delayed by reason of the pending judicial review proceedings. 31. On 16 March 1999 the High Court handed down its judgment in Sharon Lavery ([1999] NIQB; p. 6 and p. 1905), finding that there was no entitlement to legal aid at inquests. 32. As noted above (see paragraph 18), in May 1999 the Coroner was provided with a copy of the report of Dr Kirschner. He adjourned the inquest to obtain another report from Professor Knight, which was completed in June 1999 (see paragraph 20 above). In July, the inquest was re-scheduled for November 1999. 33. In the meantime, in September 1999, the Crown Solicitor’s Office advised that it would apply to maintain the anonymity of the prison officer witnesses. The hearing date of November 1999 was vacated because of that application but also to facilitate the attendance of Dr Kirschner. 34. In 2000 the inquest was further adjourned to allow the applicant to seek disclosure on the basis of a new Home Office Circular (issued in April 1999). The applicant also indicated to the Coroner that she intended to issue a judicial review challenge in relation to the pre-inquest disclosure by the PSNI. In August 2000 the applicant informed the Coroner that she no longer intended to issue judicial review proceedings and wished a hearing date to be set. 35. In December 2000 the applicant informed the Coroner that her expert, Dr Kirschner, would not be available until March 2001. The inquest was accordingly listed to commence on 5 March 2001. 36. In February 2001, with the applicant’s acquiescence, the inquest was again adjourned pending this Court’s judgment in Hugh Jordan v. the United Kingdom (no. 24746/94, ECHR 2001III (extracts)). Judgment in the case was delivered on 4 May 2001. 37. Following delivery of the judgment, no inquests were listed from September 2001 to February 2002 pending the amendment of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 (“the 1963 Rules”). 38. Between January 2002 and March 2007 inquests which gave rise to Article 2 issues were adjourned pending judicial review actions concerning the scope of the inquest (Regina v. Secretary of State for the Home Department ex parte Amin ([2003] UKHL 51; and R (Middleton) ν. West Somerset Coroner ([2004] 2 A.C. 182)) and the application of Article 2 to deaths which pre-dated the Human Rights Act 2000 (In re McKerr ([2004] UKHL 12; and Jordan v. Lord Chancellor and Another and McCaughey v. Chief Constable of the Police Service Northern Ireland [2007] UKHL 14). 39. The latter judgments, delivered by the House of Lords on 11 March 2004 and 28 March 2007 respectively, confirmed that Article 2 did not apply to cases where the deaths in question pre-dated the Act. 40. In August 2007 the Coroner wrote to the applicant informing her that nineteen inquests had been adjourned pending the outcome of proceedings before the House of Lords and were now ready to proceed. 41. A preliminary hearing took place on 2 April 2008. On that date, an inquest hearing date was fixed for October 2008. The Coroner subsequently sought copies of the interviews and statements of prison officers taken by the police and of the statements taken from certain prisoners. He gave directions on any anonymity claims that might be made on behalf of any of the witnesses. 42. On 16 May 2008 the Crown Solicitor’s Office confirmed that it acted for eight prison officers who were seeking anonymity and screening. A further preliminary hearing was listed for 10 October 2008 to address the matter. 43. On 10 October 2008 the Coroner was informed that individual threat assessments would have to be conducted in respect of each officer seeking anonymity and screening and no timescale for the completion of this process was available. 44. A preliminary hearing took place on 6 November 2008 at which the Coroner issued a ruling on applications for anonymity and directed that any applications for anonymity be filed and served by 1 December 2008. The inquest was provisionally listed to commence on 3 February 2009. 45. In December 2008 the Coroner was advised that it would take up to three months for the threat assessments to be completed. It was therefore necessary to postpone the February 2009 inquest start date. The applicant’s solicitor was notified by letter dated 15 December 2008. 46. In May 2009 the Coroner received the threat assessments in respect of the prison officers seeking anonymity. He was, at that time, involved in another complex inquest. 47. In October 2009 the applicant instructed new legal representation. The Coroner sought confirmation from the newly-appointed solicitors that legal funding was in place. The solicitors responded that they were in discussions concerning legal funding and would provide an update in due course. 48. On 24 February 2010 the applicant’s new solicitors made detailed status enquiries of the Coroner’s Office and emphasised that to date the applicant had received no disclosure. On 22 March 2010 the Coroner replied that he had received some documents from the PSNI. On the same date, he again wrote to the PSNI requesting that full disclosure with any proposed redactions be provided for his consideration by 14 May 2010. New risk assessments for the prison officers seeking anonymity were also requested. 49. No disclosure was made by the deadline set. Reminders were issued on 10 June, 26 June, 21 July and 12 August 2010. 50. The updated risk assessments were received by the Coroner on 21 July 2010. 51. A preliminary hearing was listed on 8 September 2010 in order for the Chief Constable of the PSNI to explain the delay in providing disclosure. The hearing was rescheduled for 8 October 2010 owing to the unavailability of counsel. 52. At the hearing on 8 October 2010, the anonymity of prison officer witnesses and PSNI disclosure were debated. The Coroner ordered the PSNI to make disclosure by 19 November 2010 and scheduled a hearing for 3 December 2010. Disclosure was not made as ordered and that hearing date was vacated. 53. On 23 March 2011 disclosure was received by the applicants from the PSNI. All prison officer details were removed from the statements and no initials were retained, so that it was impossible to understand which officer was referred to at any given point in the statements. The applicant requested initials (“ciphers”). The Coroner requested the PSNI to provide the disclosure again, with ciphers. By letter dated 28 April 2011 the Coroner confirmed to the applicant that the statements would be provided with ciphers and allowed twenty-one days from receipt of those statements with ciphers for the applicant to make submissions on anonymity and screening. 54. On 18 May 2011, and in light of this Court’s judgment in Šilih v. Slovenia ([GC], no. 71463/01, 9 April 2009, the Supreme Court overruled the judgments of the House of Lords concerning the applicability of Article 2 to pre-Human Rights Act deaths (see paragraphs 38-39 above) and accepted that such inquests should be compliant with Article 2 (McCaughey and Another, Re Application for Judicial Review [2011] UKSC 20). 55. Following reminders by the applicant to the Coroner in April, July, August and September 2011, on 6 September 2011 the statements with ciphers were provided to the applicant. 56. The applicant subsequently instructed a forensic pathologist, Dr Carey, to address the disputed issue of causation. Dr Carey requested access to primary data concerning the autopsy (post-mortem photographs, histology slides and the pathologist contemporary notes) and in April 2011 the applicant requested the Coroner to provide the material. The Coroner wrote to Professor Crane on 28 April 2011 asking that he make the material available to Dr Carey. In July 2011 Professor Crane replied querying the authority for the disclosure of his notes. By letter dated 1 September 2011 to the Coroner, the applicant contested Professor Crane’s refusal to provide access. Professor Crane subsequently agreed to provide the histological slides, and they were furnished in October 2011. In November 2011 the Coroner received Professor Crane’s notes and copies were provided to the applicant. 57. The Coroner received a copy of Dr Carey’s report in late November 2011. A preliminary hearing was listed on 10 January 2012. 58. At the hearing in January 2012, a revised timetable for the anonymity applications was put in place and the inquest was listed to commence on 26 November 2012, the first available date taking into account the Coroner’s existing commitments and the need for a suitable courtroom bearing in mind the estimated length of the inquest and its circumstances. A provisional witness list and timetable were circulated in February 2012. 59. In May 2012 Professor Crane provided his response to the report of Dr Carey. Additional comments from cardiac pathologist Dr Sheppard were circulated to the other legal representatives. The applicant sought disclosure of all correspondence between Professor Crane and Dr Sheppard. 60. An issue arose in May 2012 in respect of the threat assessments for the prison officers. After protracted correspondence, the issue was resolved by July 2012 and the threat assessment process commenced. By October 2012 some of the assessments remained outstanding. The Coroner decided that the inquest could not proceed in November 2012 and adjourned it until February 2013. 61. In December 2012 the applicant sought further disclosure of any other incidents which resulted in harm to a prisoner in which the prison officer witnesses had been involved, as well as details of any disciplinary proceedings against them. 62. The four pathology experts were not available in February 2013 and the Coroner was also unavailable as a result of illness. The Senior Coroner took over the case and listed the inquest to commence on 17 April 2013. 63. The correspondence between Professor Crane and Dr Sheppard was disclosed in March 2013. 64. The inquest commenced before the Senior Coroner on 17 April 2013. At the start of the inquest, the Coroner made a decision to grant anonymity to the prisoner officer witnesses. 65. The inquest ended on 16 May 2013. The narrative of the jury’s verdict explained: “The Northern Ireland Prison Service has explained the majority of the injuries sustained by Mr McDonnell. However, it has not explained the injuries to Mr McDonnell’s neck and lumbar region. The Northern Ireland Prison Service failed to carry out best practice in regard to bereavement of a prisoner.” 66. The jury’s answers to the specific questions posed can be summarised as follows: (i) Mr McDonnell was subject to a control and restraint procedure and a relocation procedure on 30 March 1996 as a result of his violent behaviour. (ii) The use of the procedure was necessary but it was not carried out correctly. (iii) The use of the procedure was not carried out only in so far as necessary. (iv) The neck injuries recorded in Mr McDonnell’s post mortem appeared to have been sustained during the initial restraint when he was grabbed by the neck. (v) The factors contributing to Mr McDonnell suffering a fatal heart attack were: the initial restraint; neck compression; the control and restraint procedure as carried out in this instance; underlying heart conditions; and emotional stress. (vi) The Northern Ireland Prison Service has not explained how he sustained the injuries found in the post mortem. (vii) There were defects in the procedures used that caused or contributed to the death of Mr McDonnell. There were: excessive force; prison officers not being trained in the application of aspects of Prison Guidelines, such as discretion on releasing control and restraint, and failures in the duty of care towards prisoners. 67. At the conclusion of the case the Senior Coroner referred the case to the DPP pursuant to section 35(3) of the Justice (Northern Ireland) Act 2002. The DPP was notified by letter dated 30 May 2013. 68. A decision by the DPP on whether to commence any criminal prosecutions is awaited. 69. The applicant commenced judicial review proceedings regarding the anonymity order made in respect of the prison officer witnesses at the inquest. She contended that this aspect of the inquest failed to comply with Article 2 of the Convention because it denied the inquest the requisite degree of transparency and accountability since the identities of those concerned were withheld from the next of kin and their conduct was not subject to public scrutiny. She did not seek the quashing of the jury’s verdict. 70. The judicial review hearing took place on 24 and 25 February and a decision was issued on 15 May 2014. The court rejected the applicant’s challenge. According to the latest information available to the Court, the applicant was considering whether to lodge an appeal against the decision.