A ‘shoot-to-kill’ allegation against the RUC – first levelled against the force 20 years ago – is to come under the spotlight again next month.

A son of Gervaise McKerr, one of three IRA men shot dead by police in 1982, is taking legal action over the government’s failure to hold a fresh investigation into his killing.

Jonathan McKerr, from Lurgan, has been given leave to apply for a judicial review of the “ongoing failure/refusal of the secretary of state to instigate” the investigation.

Mr McKerr’s action is based on a ruling by the European Court last May that Article 2 of the Human Rights Convention – the right to life – required that the elements of a shoot-to-kill policy and a cover-up should be examined.

Papers lodged in court by solicitors Madden and Finucan claimed the “authorities have failed to give effect to the judgement of the European Court and are currently in breach, and have been for some time, of their obligation to carry out a prompt and effective investigation into the circumstances of (Gervaise McKerr’s) death.”

Mr McKerr was killed along with Sean Burns and Eugene Toman in Co Armagh on November 11 1982. They were unarmed when they were shot by an RUC undercover unit. Three officers were later acquitted of the murders.

The European Court judgement referred to claims of official involvement in the killings, including an allegation that a senior officer had instructed the police suspects to conceal information from investigating officers.

The judgement stated another aspect “was the fact that there had been two other incidents in Armagh within a month in which police officers from the special mobile support units had used lethal force, killing Michael Tighe on November 24, and Seamus Grew and Roddy Carroll on December 12.”

The judgement states at paragraph 137: “Serious concerns arose from these three incidents as to whether police counter-terrorism procedures involved an excessive use of force, whether deliberately, or as an inevitable by-product of the tactics that were used.”

The panel of European judges held that the criminal trial of the three police officers had not met the aims of reassuring the public and Mr McKerr’s family as to the lawfulness of the killings.

“The deliberate concealment of evidence also cast doubts on the effectiveness of investigations in uncovering what had occurred,” the judges said.

“In this case, therefore, the court finds that Article 2 required a procedure whereby these elements could be examined and doubts confirmed, or laid to rest.”

Angela Ritchie, a partner in Madden and Finucane, said the failure to carry out an effective investigation meant her client “continues to suffer feelings of frustration, distress and anxiety.”

The judicial review is due to be heard by Mr Justice Kerr on June 10.