Patrick Shanaghan v the United Kingdom - The Pat Finucane Centre

SHANAGHAN v. THE UNITED KINGDOM JUDGMENT 33
which might have occurred and, in that respect, fell short of the
requirements of Article 2.
114. The public nature of the inquest proceedings is not in dispute.
Indeed the inquest appears perhaps for that reason to have become the most
popular legal forum in Northern Ireland for attempts to challenge the
conduct of the police and security forces in controversial killings. The
applicant complained however that her ability to participate in the
proceedings as the next of kin to the deceased was significantly prejudiced
as legal aid was not available in inquests and documents were not disclosed
in advance of the proceedings.
115. The Court notes however that, as with the next of kin in the
McCann case, the applicant has been represented by a solicitor at the
inquest. It has not been established therefore that she has been prevented, by
the lack of legal aid, from obtaining any necessary legal assistance at the
inquest.
116. As regards access to documents, the applicant was not able to
obtain copies of any witness statements until the witness concerned was
giving evidence. This was also the position in the McCann case, where the
Court considered that this had not substantially hampered the ability of the
families’ lawyers to question the witnesses (cited above, p. 49, § 62).
However, since that case, the Court has placed more weight on the
importance of protecting the interests of the next-of-kin of a deceased in the
procedure (see Öğur v. Turkey, cited above, § 92). Further, the Court notes
that the practice of non-disclosure has changed in the United Kingdom in
the light of the Stephen Lawrence Inquiry and that it is now recommended
that the police disclose witness statements 28 days in advance (see
paragraph 55 above). This development must be regarded as a positive
contribution to the openness and fairness of the inquest procedures.
117. The inability of the family of the deceased to have access to witness
statements before the appearance of the witness must be regarded as having
placed them at a disadvantage in terms of preparation and ability to
participate in questioning. This contrasts strikingly with the position of the
RUC who had the resources to provide for legal representation and full
access to information about the incident from their own files. The Court
considers that the right of the family of the deceased whose death is under
investigation to participate in the proceedings requires that the procedures
adopted ensure the requisite protection of their interests, which may be in
direct conflict with those of the police or security forces implicated in
events. The Court is not persuaded that the interests of the applicant as nextof-kin
was fairly or adequately protected in this respect.
118. Reference has also been made to the allegedly frequent use of
public interest immunity certificates in inquests to prevent certain questions
or disclosure of certain documents. No certificate was issued in this case.
There is therefore no basis for finding that the use of these certificates