30 May 2002 Edition
British government censured by European Court of Human Rights
McShane family vindicated
The Committee on the Administration of Justice (CAJ) has welcomed this week's finding of the European Court of Human Rights that Britain violated the right to life in the case of Dermot McShane.
McShane was killed in Derry in July 1996 during rioting, when a British Army vehicle drove over a piece of hoarding behind which he was sheltering. Rioting erupted in Derry after the British government beat nationalist protesters off the streets of Portadown to allow an Orange parade along the Garvaghy Road. At the time, nationalists accused the RUC of provoking young people in Derry City Centre, adding to the tension in the city.
The case was lodged by the Committee on the Administration of Justice on behalf of McShane's widow, Treasa, in October 1996.
In its judgement, issued on Tuesday morning, 28 May, the European Court criticised the British government for failing to properly investigate McShane's death. The Court awarded damages of £8,000 to Treasa McShane.
It highlighted a number of defects in the investigation of the death, finding that:
there was a lack of independence in the investigation;
the police investigation showed a lack of expedition;
the soldier who drove the vehicle could not be required to attend the inquest as a witness;
the inquest procedure did not allow any verdict or findings;
the non-disclosure of witness statements and other documents contributed to long adjournments;
the inquest proceedings had not commenced promptly.
In reaching its conclusions the Court described as "remarkable" the delay of five and a half months in questioning the driver of the army vehicle.
In addition to finding a violation of Article 2, which governs the right to life, the Court found that Britain took steps to hinder Mrs McShane's application. Accordingly the Court found that the United Kingdom had failed to comply with its obligations under Article 34 of the Convention. This relates to a complaint made by the police to the Law Society alleging that a solicitor made documents available for the applicant's case to the European Court. The Law Society dismissed the complaint as unfounded but the Court found that the states actions in bringing the complaint in the first place could have a "chilling effect" on applicants taking cases to the Court.
"This judgement is an important step forward in terms of protecting rights in Northern Ireland and indeed across Europe," said Paul Mageean, Legal Officer with CAJ. "It is a salutary reminder to government that, even in the midst of conflict, the state and its agents must act within the rule of law. It is particularly significant that the Court has censured the government's efforts to thwart the taking of this case."
Mageean added that the judgement would have significant implications for the inquest system and the way in which police investigate cases of alleged state killing. "This judgement must be followed by the courts in Northern Ireland," he said. "It vindicates those who have long argued that our system falls well short of European standards and the government needs to take immediate action to rectify that situation. In addition, the judgment obliges the government and the police to establish independent mechanisms to investigate alleged killings by the police or army."
CAJ also called on the government to immediately clarify what steps it intended to take to ensure that a proper investigation would now take place into the death of Dermot McShane.
McLaughlin welcomes ruling
Sinn Féin Foyle Assembly member Mitchel McLaughlin welcomed the European Court decision. "It is a vindication of the belief of Mrs McShane and the people of Derry that the British government had violated the right to life of Dermot McShane, who was callously killed by a British Army driver in Little James Street in July 1996," he said. "Eyewitness accounts point to the driver deliberating driving his vehicle at Dermot as he took cover from plastic bullets behind a piece of hoarding.
"As a first step, the British government should immediately announce what steps it intends to take to ensure that a proper and independent investigation would now be carried out into the death of Dermot McShane. It must also instigate a complete overhaul of the inquest system so that all of those families denied a proper investigation into the deaths of their loved ones can now have full and open inquests held."
Eyewitness to a killing
Photojournalist Oistin MacBride recalls being a witnes to the killing of Dermott McShane. "I knew the minute I saw Dermot Mc Shane he was dead or dying," he told An Phoblacht. "I was behind the British Army Saxon that crushed him to death and had been photographing the unfurling situation for a couple of hours at that stage.
"I was probably the closest civilian witness to the killing on the Army side of the lines yet I was never approached by anyone in the Army, RUC or DPP about any information that I might have. Patently, his death was not investigated properly on that point alone.
"The ruling today in the European Court is right and proper. There was no independent investigation and to say the RUC showed a lack of expedience is an understatement. As I wrote at the time, his death was clearly predictable and obviously acceptable. Today's ruling shows that it is not acceptable to his family or the international legal community."
The following eyewitness account is taken from McBride's book, Family, Friends and Neighbours.
"They Deserve It"
The Land Rovers gunned their engines and raced over the pedestrian precinct at the crowd, which dispersed in every direction. It was real life Russian Roulette, using armoured jeeps. Someone was going to get killed
On the night of 12 July 1996, nationalist anger erupted in the aftermath of the U turn at Drumcree. It was the worst rioting I had witnessed since 1981.
In Derry, a roving crowd of approximately 300-500 moved from the Diamond towards Strand Road around 1 am. After 10-20 minutes a large force of British soldier and RUC emerged from Strand Road Barracks. They initially formed a cordon, then the vehicles moved forward slowly in unison towards the Diamond and right towards Little James Street.
At this junction, five RUC Land Rovers formed a cordon and came under a sustained barrage of stones and missiles. One of the jeeps drove back and forward perpendicular to the cordon and a number of plastic bullets were fired back up Strand Road at people watching the disturbances. There were 6-10 journalists around this junction. The Land Rovers then gunned their engines and raced over the pedestrian precinct at the crowd, which dispersed in every direction.
It was real life Russian Roulette, using armoured jeeps. Someone was going to get killed. The Land Rovers suddenly stopped after approximately 20 yards and reversed back to their original position. The crowd came forward and more missiles were thrown. Again the Land Rovers gunned their engines and raced forward, dispersing the crowd. This time they went approximately 15 yards and reversed.
The deadly cat and mouse game was repeated at least twice more, with the Land Rovers sometimes only going ten yards. Each time the crowd came back closer to the jeeps and plastic bullets were fired from the gunports on their sides. About 20 plastic bullets were fired.
I moved towards the corner of Little James Street, where approximately 20 RUC personnel were standing in full riot gear. They were joined by a contingent of British soldiers, who arrived in jeeps and Saxon armoured personnel carriers (APCs). They all moved to Little James Street, adjacent to the Post Office. Approximately 80 yards up the street there was a barricade of a burning car and an overturned rubbish skip. The car had been burning for nearly an hour and was completely gutted.
At this stage there were 20-30 soldiers with "Highlander" flashes on their shoulders and a similar number of RUC in riot gear. There was an intensive barrage of missiles being fired towards the cordon and plastic bullets were being fired "at will" by both soldiers and RUC. There was considerable confusion between the RUC and soldiers about what they were doing and a number of times an RUC man with a megaphone instructed his personnel that they were moving forward to the corner. This instruction was repeated by an army officer also with a megaphone.
There was a helicopter overhead at this stage with a spotlight illuminating the crowd and junction. On Strand Road, the streetlights had been switched off in sequence as the RUC and soldiers moved forward. In Little James Street I noticed the streetlights were still on. The RUC man in charge was receiving radio messages about what to do and he cursed violently several times to another officer saying, "these fucking cunts can't make up their mind... We're not going in now".
At this stage, the cordon had moved only a few feet and was approximately 20 yards along the wall of the adjacent Post Office. Plastic bullets were being fired continuously from all along the cordon and there was very considerable shouting among soldiers and RUC. Once again, it appeared an order was received to advance to the corner. An RUC officer called his sergeants together and told them what they were doing and they shouted for "plastic bullet gunners" to load up and another instructed them to fire a volley around the corner when they got there and reload immediately. Another said "anything that moves hit it". Shouts went along the firing line "we're going in".
The cordon of approximately seven vehicles moved forward at walking speed with absolutely continuous firing of plastic bullets. I could see through gaps in the Saxons that the crowd was fleeing in all directions and I heard an RUC man say that more security forces were coming down a street to the left. As the Saxons hit the burning car and skip, there was near pandemonium among the soldiers and RUC. I can only describe the feeling as a blood lust. There was screaming, shouting and shooting competing with the rumble of Saxons, jeeps and the overhead whine of the helicopter.
The noise of hundreds of rounds being fired was deafening, the heat of battle and the cordite cloud of gunsmoke pervasive and choking. I was on the left-hand side of the street moving behind an army jeep when the burning vehicles were hit and pushed back. I looked across the line and saw two men lying in the middle of the rubble about 10-15 feet away from me.
Dermott Mc Shane had been crushed by the Saxon APC as he sheltered behind plywood hoarding from the barrage of plastic bullets. He was clearly unconscious and was being gathered up in the arms of his friend.
As I looked he cradling Dermott McShane in his arms screaming and crying "Please help us' somebody please help us. He was only out for a drink... why did you do this? Somebody please help us". It was a pitiful sight in the midst of such chaos.
Several soldiers and RUC men milled about for what seemed an age. None moved to help the injured man. Eventually two RUC men in riot gear, one carrying a green fire extinguisher, took McShane by the shoulders and Martin Finucane took one of his legs. Together, they dragged/carried him over the rubble back to the corner of Little James Street outside the Post Office. Approximately 20 people were around him and it was clear he was fatally injured.
Two RUC men fruitlessly applied bandages to a massive crush injury on his right leg. In the process, one was slashed in the face with a broken bottle by someone in the crowd. Dermot Mc Shane was taken to Altnagelvin Hospital but was dead upon arrival. It truly was the inevitable outcome of the crazy game that the soldiers and RUC had played with the rioters.
Back on the firing line I asked an army officer why they were firing so many plastic bullets and he replied "they deserve it". An RUC sniper said "it's time for the lead". Other RUC said it was the most they had ever fired and on several occasions I saw soldiers and RUC using brush shafts to try and clear jammed weapons that they said were overheating. One group told me it was not a common occurrence but added "What do you expect when it's like this". They were quite literally ankle deep in plastic bullet casing and had to clear the area around them a number of times.
Sometime after 5am, I moved to the Bogside behind the rioters and witnessed several hundred more plastic bullets being fired. After the area was cleared around 6.30am, I watched groups of soldiers filling milk crates and large bags with plastic bullets and casings, which were literally everywhere around the junction. Several raised their batons in a threatening manner, meaning I should stop taking pictures. But the evidence of their onslaught couldn't be hidden. One hundred and fifty people injured with plastic bullets and Dermot McShane dead.
While Loyalists held the North to ransom for a week, successfully using violence and threat to get marching down the Garvaghy Road, 1,000 plastic bullets were fired. When nationalists vented their anger at the coup within the RUC and the U-turn on marching, 5,000 plastics were fired at them, most in one night in Derry.
As a witness to the killing, possibly the closest civilian witness, I made several statements to human rights organisations. At no time was I ever contacted by the RUC. Over a year later, the Director of Public Prosecution decided that the soldier who knocked Dermot McShane down and then crushed him to death under the wheels of the Saxon APC should not be prosecuted.
His death was clearly predictable and seemingly acceptable.