AS TO THE ADMISSIBILITY OF
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,Note
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 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 caseNote
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”.
b. The failure to collect information about the individual concerned although “there was both the time and the means by which considerable pertinent information could have been collected”, and a failure to secure the prompt attendance of trained negotiators.
c. A failure to get a plan of the layout of the area, and the fact that there was no organised positioning of officers, who were allowed to position themselves, leaving four of them exposed. “I find it unacceptable that a senior officer in charge of a firearms operation should only be aware that his officers were exposed some hours later at a team debrief.”
d. “A level of confusion which should not exist in this type of police operation. … Regardless of the contribution to this confusion by occasional poor radio reception and the individual errors of operations room staff, the main reason rests with Mechan’s failure to take the initial basic step of ascertaining whether or not a Forward Control Point existed and its location. The situation was exacerbated by his failure to avail himself of radio communications with the consequence that he travelled to an incident which he knew he was to command completely unaware of developments and without any means of providing any command input”.
e. “I am satisfied that [McArthur] did not engage in adequate planning prior to the deployment of authorised firearms officers at Crabadon Manor, neither did he direct any other officer to do so and that this failure amounts to a neglect of duty and that there is sufficient evidence that he committed this offence (§ 178). … Indeed it could well be suggested that McArthur’s failure displayed a disregard for the safety of his men and even indirectly the suspect (§ 164).”
f. “The failure to call out divisional officers is an important issue as it has been suggested that a larger number of armed officers than was available at Middlemoor may have allowed for a more distant armed containment of Hay.”
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.”
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;
b. Failed to consider the available knowledge in respect of Mr Hay with respect to its relevance to an armed containment;
c. Failed to liase properly with Silver Command.”
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:
a. a want of initial planning and intelligence;
b. a failure to acquire the information necessary for containment of the deceased;
c. an unauthorised change of role during the operation; and
d. a failure to consult the deceased’s mother before deploying the firearms team.
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.
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  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  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  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
i. failed, through Chief Inspector McArthur to ensure that any or any adequate planning was carried out prior to the deployment of firearms officers at the site;
ii. failed to ensure that Superintendent Mechan would take up his post consequently causing permitting or requiring a poor command structure;
iii. causing, permitting or requiring an insufficient number of armed firearms officers to be present at the site;
iv. failed to place a sufficient number of armed firearms officers at the site;
v. failed to obtain any or any sufficient background information about the mental state of the deceased;
vi. failed to obtain any or any adequate information as to the layout of the site;
vii. causing, permitting or allowing the deployment of a crew of armed firearms officers who were not furnished with any or any adequate information as to the layout of the site;
viii. failed to use a trained negotiator as part of the operation at the site;
ix. causing, permitting or requiring a helicopter to attempt to monitor the operation knowing it could not provide a continuous observation of the operation;
x. causing, permitting or requiring the helicopter to attempt to monitor the operation whilst it had a low fuel level;
xi. failed to mount an operation which could have avoided placing the life of the deceased in danger whilst guaranteeing the safety of the public and police;
xii. failing to exercise such care and skill which was reasonable in all circumstances;
xiii. exposing the deceased to an unnecessary risk of being shot, namely the risk which materialised.”
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. …
4. The Devon and Cornwall Constabulary regrets the death of Ian Fitzgerald HAY. It accepts that the high professional standards required by the Devon and Cornwall Constabulary were not met by every single individual involved in this operation.
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”.
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 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
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