EUROPEAN COURT OF HUMAN RIGHTS
AS TO THE ADMISSIBILITY OF
Application no. 27306/05
by Lynn CUMMINS and Others
against the United Kingdom
AS TO THE ADMISSIBILITY OF
Application no. 27306/05 by Lynn CUMMINS and Others against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 13 December 2005 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijovic,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 14 July 2005,
Having deliberated, decides as follows:
The applicants are relatives of three of the persons who were killed in the bombings in Dublin in December 1971 and January 1972 and five are victims of injury suffered in those explosions. They are represented by Mr G. Neill, a solicitor practising in Dublin and solicitor for the organisation "Justice for the Forgotten". Details of the applicants may be found in the Annex.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 1 December 1972 George Bradshaw and Thomas Duffy were killed and 131 people injured when car bombs exploded without warning at Eden Quay and Sackville Place in the centre of Dublin.
On 20 January 1973 another car bomb exploded in Sackville Place killing Thomas Douglas and injuring 14 other people.
On 19 January 1973, the principal Irish police report on the first bombings was concluded, reporting inter alia that the two cars used in the bombings had been hired in Northern Ireland. In the section dealing with inquiries in Belfast, it was commented:
"Due to the unsettled state existing in Belfast, it was not possible for members to pursue all enquiries to finality. This was largely due to reluctance on the part of the RUC  members to enter some areas of the city. In other instances and for reasons best known to themselves the RUC members would not allow our members to interview some persons. A case in point was the check made at ... (tel. 668531). The RUC members conducted this enquiry on their own while leaving two Garda members in a car outside. The information passed on was that the house was occupied by an eccentric old lady and her two grandchildren and to forget about her..."
The report made no speculation as to who was responsible for the bombings and concluded that enquiries were continuing.
The investigation report into the second bombing issued on 13 March 1973, also without identifying any suspected perpetrators.
Following the "Good Friday Agreement" in 1998, a Victims' Commission was set up in Ireland in response to the perceived need for the suffering of the victims of violence to be recognised and addressed. In a report published in August 1999, the Commission acknowledged that there was a widespread demand to find out the truth about specific crimes for which no-one had been made amenable. Foremost amongst these was the later Dublin/Monaghan bombings of May 1974 (see O'Loughlin and Others v. Ireland, no. 23274/04, dec. 25.8.05).
In December 1999, the Irish Government agreed to establish a non-statutory Commission of Inquiry. Mr Justice Henry Barron was eventually appointed to head the inquiry and issue a report to the Government, after which a committee of the Irish Parliament would decide whether any further steps should be taken. The inquiry was informal, did not sit in public and had no legal powers. It initially received terms of reference in relation to the Dublin/Monaghan bombings of May 1974 and the bombing of Kay's Bar, Dundalk in December 1975. In January 2002, the Government also requested the inquiry to take into consideration other bombings and shootings in the Republic during the 1970s. Following a preliminary examination the inquiry felt that the Dublin bombings in 1972 and 1973 should be the subject of a second report.
On 17 February 2003 the Inquiry wrote to the Secretary of State for Northern Ireland seeking such further information as the British Government might have concerning the bombings in Dublin in 1972 and 1973.
On 9 June 2003 the Secretary of State replied that this would appear to require a further major search through their records and given the experience of the task of identifying relevant material in the Dublin/Monaghan and Dundalk bombings this would take some time.
By letter dated 30 June 2003, the Inquiry asked the Secretary of State if, in the first instance, documentation could be supplied relating to the intelligence services' initial reactions to the bombings and their opinions as to those who were responsible.
By letter dated 26 September 2003, the Secretary of State replied that this would require a major and time-consuming search of records and that he could not give any indication at present of when that would be possible.
Following further letters from the inquiry dated 21 November 2003 and 2 February 2004, the Secretary of State replied that they had yet been unable to commence the time-consuming search through the various records.
Further letters were sent by the inquiry dated 26 April 2004 and 28 May 2004 stressing the urgency and asking for at least the police records on the incidents. No reply was received.
In December 2003, the first inquiry report (sometimes known as "the Barron Report") was made public. The inquiry had heard evidence, inter alia, implicating the UDR  and former RUC officers in organising and supplying explosives for the Dublin/Monaghan bombings in 1974. Written evidence before the inquiry included materials from the RUC who had carried out a number of interviews at the request of the Irish police, including some of the implicated officers who had rejected allegations of collusion in the attacks.
In his statement to the Joint Committee, Mr Justice Barron stated that from the early stages the inquiry had received assurances of co-operation from the British Government and Police Service of Northern Ireland. From its dealings with the RUC/PSNI, the Inquiry had received a considerable amount of information, including records of the questioning in December 1978 of RUC officers suspected of participating in attacks on Catholic civilians and ballistics evidence. There had been considerable delay in obtaining information from the Secretary of State of Northern Ireland. The inquiry was told that this was because there were some 68,000 files of possible relevance in the Northern Ireland Office alone, while files in the Ministry of Defence could be counted in the millions. The teams examining these files were stated to have finished at the end of 2001. On 26 February 2002, a ten page letter was sent by the Secretary of State containing the promised information. An appendix of six pages gave details of the structure and control of intelligence gathering at the relevant time. No copies of original documents had been provided. Further requests for specific information did produce some additional information in a similar form:
"Correspondence with the Northern Ireland Office undoubtedly produced some useful information; but its value was reduced by reluctance to make original documents available and the refusal to make other information available on security grounds. While the Inquiry fully understands the position taken by the British Government on these matters, it must be said that the scope of this report is limited as a result."
The Inquiry nonetheless made findings as to the likely identities of the loyalist perpetrators (mostly members of the Ulster Volunteer Force "UVF") and concluded that it was likely that members of the UDR and RUC participated in, or were aware of, the preparations for the Dublin-Monaghan bombings.
On 17 November 2004, the Joint Oireachtas Committee on Justice, Equality, Defence and Women's Rights, published the inquiry's second report on the bombings in issue in the present case (known as the "Interim Report of the Independent Commission of Inquiry into the Dublin Bombings of 1972 and 1973").
In this report, Mr Justice Barron found that on the information available to date there was no credible evidence of any collusion by United Kingdom security forces in the bombings. It was established that the car which exploded in Sackville Place was a silver-grey Fort Escort registered no. 9551VZ and the car which exploded on Eden Quay was a blue Hillman Avenger registered no. OGX 782K. The Irish police investigation in Belfast revealed that they had both been hired on 30 November 1972 by a man using a driver's licence in the name of Joseph Fleming. The latter made a statement to the RUC from which it appeared that his driving licence had been stolen in August 1972. The RUC and Irish police were satisfied that he had no connection with the bombings. The Irish police received full co-operation in their enquiries in Belfast following up the hiring of the cars and were successful in interviewing most of the persons involved in the transactions, building up photofit impressions of the hirer from the witnesses. The Irish police took possession of all the hiring documents for fingerprint examination. Further enquiries revealed that the driving licence had been used to hire two other vehicles (one of which had been returned). Details of the photofit picture and the licence were circulated in the Republic and in Northern Ireland, without apparent success in uncovering any further information. As regarded fingerprint evidence on the documents, some were established as belonging to innocent persons. Some four unidentified prints were sent to the RUC for their comparison. The inquiry noted that while no written report was ever received in reply, it could not be excluded that an oral negative reply had been given over the telephone.
The inquiry further noted that the investigation report at the time stated that a miscellany of intelligence information had been received and acted upon but it commented that without going into details it sufficed to say that nothing of real interest resulted. It could no longer be established from the available documentation what the nature of this information was. One known element indicated that a named individual, an ex-British army man, was investigated by the police in England who notified the Irish authorities of various details including his whereabouts on relevant days and concluded that he had not been in Ireland at those times.
As regarded possible loyalist responsibility for the bombings, the inquiry stated that on 3 February 1973 an Irish police inspector had reported that one of his informants had given him confidential information to the effect that the UVF was responsible for the bombings. A report of this was passed to the RUC with a request for any relevant information that might be available, in particular concerning the bomb maker said to be a retired member of the British forces now a UDA member in the Guildford area of County Down. By letter dated 12 April 1973, the RUC summarised their enquiries stating that they had no hard intelligence on those responsible for the bombings. The retired member of the armed forces in the Guildford area had not been identified but the information could refer to an ex-colonel living outside Lurgan. The RUC stated that they were following this up. While there were no further letters dealing with this subject, it could not be excluded that verbal contact was maintained on the issue.
The inquiry report contained an examination of the allegations of collusion or British army or intelligence involvement which had been aired from the time of the bombings and had been even referred to on television by the Irish Prime Minister shortly after the events. It noted that in October 1973 a member of the British army, Albert Baker, who had deserted from his unit and joined the UDA , was convicted of the murder of four Catholics and eleven robberies. He also gave evidence against other UDA members. A newspaper article in 1976 reported that Baker had stated the cars used to bomb Dublin were driven from Belfast by UDA men but that the explosives and cars themselves had been supplied by a leading member of the UDA from Derry who had a close association with British intelligence. While the author of the article claimed to know the names of the UDA men involved, he told the inquiry that no Irish police officer approached him on the matter. In a later statement in prison in 1986, Baker claimed that there was collusion between the UDA and the RUC, in particular that a RUC sergeant was passing weapons to the UDA and that the RUC had been instructed not to let him talk to the Irish police about the UDA bombings in Ireland. An official from the Irish Embassy visited Baker in 1989 and while on that occasion he made allegations concerning links between a UDA man who made a bomb and British intelligence he referred only to "a single bombing incident in the south in the early 70s", without identifying the date or place of the attack.
On the other hand, the inquiry report noted that another journalist had published allegations suggesting that the UVF were responsible, in particular Jim Hanna who was killed in 1974. According to a recent book published by the journalist, a former Chief of Staff of the Official IRA had told him shortly before his own death in 1998 that at an IRA/UVF meeting in 1973 Hanna had claimed that the UVF had planted the bombs in Dublin but that the army provided the cars. The journalist did not respond to the invitation to talk to the inquiry. A third journalist told the inquiry that by 1973 Hanna was the senior military commander for the UVF in Northern Ireland and that he was a close friend of three officers in 39th Brigade Intelligence in Lisburn and of an army officer, possibly from the SAS attached to intelligence. Hanna had not mentioned to him any involvement in the bombings and that in any event Hanna was to some degree a fantasist, embellishing and fabricating stories to make himself seem more impressive.
Mr Justice Barron commented as follows on the inquiry's access to information from United Kingdom sources:
"... It is now more than fifteen months since the Inquiry's first request for information on the Dublin bombings of 1972 and 1973 was made. But on this occasion not only has no information been forthcoming; but as of 2 February 2004 the Northern Ireland Office has not yet begun the process of searching for relevant information. ...
... The Inquiry is surprised and disappointed at this lack of co-operation on the part of the British authorities."
A sub-committee was established to examine the report in public session with a view to reporting back to the Houses of the Oireachtas. It invited submissions from interested persons and bodies and held public hearings between 25 January and 3 February 2005. The committee issued a final report with recommendations on 16 February 2005. The committee noted the lack of co-operation that Mr Justice Barron had received from the Northern Ireland Office and the British authorities and stated that it had experienced the same difficulty and had met with no adequate response to its own requests for information. It referred to a letter dated 10 January 2005 from Prime Minister Blair to the Irish Prime Minister which explained that on the matter of British co-operation with Justice Barron's extended inquiry it was their judgment that, given their experience of the scale of the task in identifying relevant materials in the Dublin, Monaghan and Dundalk bombings, it would not have been possible to conduct another major search through their records within the timescale of the inquiry.
The committee further noted that when it narrowed its request to two sets of papers, including those of the Joint Intelligence Committee from 1970-1975, this was no more successful. It stated that in its view the fact that to date the papers had not been made available raised the question as to whether the British authorities had something to hide and that this non-co-operation exacerbated the difficulties in establishing the truth. It made no findings as to collusion otherwise and made no specific recommendations concerning further investigations into these bombings.
Meanwhile, during the late 1990's the lawyers acting for the victims and relatives in the organisation "Justice for the Forgotten" discovered that the inquests into the death of the three people who had died in the bombings in 1972 and 1973 had been adjourned. The City Coroner agreed that the inquests should resume on 22 February 2005 once the inquiry report had issued.
Prior to and during the inquest the legal representatives of the victims' families made known their views that witnesses from Northern Ireland and other parts of the United Kingdom would be necessary to ensure a thorough and proper inquest took place. By letter dated 12 January 2005 the Coroner had already requested information from the PSNI, including any files in relation to the criminal investigation concerning the cars stolen in Northern Ireland and identified as involved in the bombings in Dublin and any files relating to specific inquiries conducted by the RUC in support of the inquiries made by the Irish police into the 1972 and 1973 Dublin bombings. He also invited a representative of the PSNI to attend the inquest. The PSNI declined to send a representative on the grounds that there was no one who had been sufficiently senior at the time and was still a member of the service.
Two witnesses from Northern Ireland voluntarily attended the inquest at the invitation of "Justice for the Forgotten". Other witnesses declined to attend, such as Mr James Stansfield whose car had been hijacked and used in the 1973 bombing and whose two statements to the RUC contained inconsistencies which the victims' families wished to explore.
Members of the Irish police gave evidence at the inquest concerning their contacts with the RUC during the investigation. A detective superintendent outlined that during the investigation members of the Irish police conducted enquiries in Belfast with the assistance and co-operation of members of the RUC. For example, photofit pictures of the hirer of one of the cars were compiled from witness descriptions, the Irish police were given all the hiring documents for fingerprinting and the RUC interviewed a number of people in relation to the hiring and hijacking of cars.
On 25 February 2005, the jury gave verdicts of unlawful killing by a person or persons unknown.
The applicants complained that the United Kingdom had failed, in breach of its obligations under Article 2, to co-operate with the Independent Commission of Inquiry, the consideration of the report by the sub-committee of the Irish Parliament and the resumed inquests by the Dublin Coroner. They complained that it was known that the perpetrators came from the jurisdiction of the United Kingdom and that the United Kingdom authorities held information essential to any effective investigation or inquiry. They pointed to the well-established nature of the public administration in the United Kingdom, its renown for its management techniques, its recently adopted expertise in file identification and retrieval in the Bloody Sunday Tribunal, the fact that the relevant departments and bodies still existed and the dates and events were specific to known areas of responsibility in arguing that the the United Kingdom's claims of difficulty in identifying and accessing relevant information were grossly exaggerated.
The applicants complained that the United Kingdom had failed to co-operate with recent investigations into the deaths and injuries caused by bombs in Dublin in 1972 and 1973, invoking Article 2 of the Convention which provides as relevant:
"1. Everyone's right to life shall be protected by law. ..."
The Court's case-law establishes that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention", 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 (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, § 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 86). The essential purpose of such investigation is 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. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, Ilhan v. Turkey [GC] no. 22277/93, ECHR 2000-VII, § 63).
Where there are cross-border elements to an incident of unlawful violence leading to loss of life, the Court has already had occasion to observe that the authorities of the State to which the perpetrators have fled and in which evidence of the offence could be located may be required by Article 2 to take effective measures in that regard, if necessary of their own motion. Otherwise those indulging in cross-border attacks would be able to operate with impunity and the authorities of the Contracting State which has suffered the attack would be foiled in their own efforts to protect the fundamental rights of their citizens (see the above-cited O'Loughlin and Others case).
In the present case, the Court finds no indication of any lack of effective co-operation by the police in Northern Ireland in the aftermath of the bombings in 1973. The Barron inquiry report refers in positive terms to the fact that Irish police officers were able to conduct inquiries in Belfast and had full access to available evidence (e.g. the documents relating to the cars used in the bombings). The criticism made that RUC officers were reluctant at times to enter areas of Belfast, at a time of considerable unrest, and insisted on occasion on interviewing suspects alone (the example given was an eccentric old lady) does not, in the Court's view, disclose any bad faith or establish that there were any obstacles effectively preventing the Irish police from pursuing any substantive leads. It would appear that the investigation had largely wound down by the end of 1973 without any success in identifying possible suspects or further useful leads.
The applicants' complaints indeed focus, not on the co-operation in the investigation furnished at the time, but on the United Kingdom authorities' failure to respond to the Barron inquiry and the Joint Committee's requests for information from their files, as well as the lack of response to the Coroner's approaches for the purpose of the Inquest.
The Court would note, firstly, that the Barron inquiry report which commented on the failure of the United Kingdom authorities to produce information from their files was published on 17 November 2004, more than six months before the application was lodged with the Court, raising issues as to whether this part of the applicants' complaints has been lodged timeously as required by Article 35 § 1 of the Convention.
That said, the Court would observe that both the Barron inquiry and the Joint Committee hearings were non-statutory, non-judicial procedures, inspired by the considerable sympathy felt for the victims and their families who continued to suffer from a lack of resolution to the atrocities committed. The United Kingdom authorities had already been requested to assist in providing information concerning the Dublin-Monaghan bombings and had provided some information and copies of documents, after trawling through hundreds of thousands of files. The Court finds that the United Kingdom Government response to a subsequent extension of the enquiry and a new series of requests concerning earlier incidents was unsurprisingly not enthusiastic. It sees no reason to doubt that responding to such requests would have been time-consuming in the extreme and is unpersuaded by assumptions that the work had already been done for the Dublin-Monaghan bombings or that the task would be of relative simplicity for British staff well-practised in document retrieval due to experience in their own inquiries.
While administrative difficulties do not as such excuse a failure to provide an effective investigation into a potential breach of Article 2, the Court must give weight in this case to the lack of any concrete elements of collusion by British security forces in the bombings, which may be contrasted with the evidence brought to light concerning other incidents both north and south of the border. That evidence cannot be regarded as in any way probative of any likely security force implication in the bombings in issue in this case. Nor have the applicants pointed to any line of substantive enquiry or access to potential suspects being blocked by the United Kingdom authorities. In the circumstances, given the lapse of time and the level of assistance given by the RUC to the Irish police in their investigations at the time, the Court does not find that the failure of the United Kingdom to complete a search of all their files for information of possible relevance to the inquiries in the Republic of Ireland discloses any appearance of a breach of a positive obligation to conduct an effective investigation required by Article 2 of the Convention.
As regards the inquests, which were conducted by Coroner and jury in Dublin in early 2005, the Court recalls that this procedure had been adjourned for over thirty years. No explanation has been provided as to why the Irish authorities, or the families, did not take steps to conclude the inquests within a reasonable time after the events. While it appears that the Northern Ireland police declined to send a representative to the hearings, this was apparently on the basis that there was no relevant officer still on the force who could give useful evidence some thirty years later. Nor is it apparent that any former RUC officer or the requested information from RUC files would have been likely to shed any further light on events, given the level of co-operation between the Irish police and RUC during the investigation at the relevant time. The Court finds accordingly that it has not been shown that the United Kingdom authorities were required, for the purposes of assisting in an effective investigation under Article 2, to participate in the manner requested in the resumed inquest hearings.
The Court therefore rejects the application as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'Boyle (Registrar), Josep Casadevall (President)
A N N E X
List of applicants
1. Lynn CUMMINS
2. Anna BRADSHAW-COOKE
3. Matthew BRADSHAW
4. Rose BRADSHAW-BRETT
5. Patrick BRADSHAW
6. Angela BRADSHAW-CONNERY
7. Monica DUFFY-CAMPBELL
8. Thomas DUFFY
9. Paddy DUFFY
10. Mary NOBLE (née Douglas)
11. Martin DOUGLAS
12. Andrew DOUGLAS
13. Joseph DOUGLAS
14. Patrick MORRISSEY
15. Betty SWORDS
16. Joan Ann T. HOURIGAN
17. Rosanna BOWLER
18. John GARVEY
 Royal Ulster Constabulary : the police force in Northern Ireland. Now known as the Police Service in Northern Ireland (PSNI).
 Ulster Defence Regiment.
 Ulster Defence Association.