Bloody Sunday, human rights and the duty to investigate deaths [updated]

16 June 2010 by

Lord Saville has already come under significant criticism for the time and money which has been swallowed up by the Bloody Sunday Inquiry. Future public inquiries could now be under threat as new Justice Secretary Ken Clarke has accused the Lord Saville of allowing the process to get “ludicrously out of hand“.

The Saville Inquiry Report was published yesterday and can be downloaded here, a summary here and a good analysis here. Lord Saville’s long-awaited inquiry into the Bloody Sunday killings of 30 January 1972 was set up to investigate the events surrounding a march in Derry when 29 protesters were shot by British soldiers, leading to 13 deaths. The Inquiry has been widely criticised prior to its findings.

If the uproar over Bloody Sunday leads to other inquiries being downsized or cancelled, however, this may leave the state vulnerable to human rights challenges arising from the wide (and widening) obligation upon the state under human rights law to properly investigate deaths.

A wide duty to investigate

Article 2 of the European Convention on Human Rights provides legal protection for everyone’s right to life. In some circumstances this includes an obligation on the state to investigate deaths and ensure the investigation is properly conducted. Since the passing of the Human Rights Act in 2000, the duty under Article 2 has resulted in a proliferation of public inquiries as well the increasing importance of coroners inquests, particularly for the relatives of the dead.

The duty under Article 2 is wide-ranging and has increased in scope in recent years. As Lord Bingham put it in R (Amin) v Secretary of State for the Home Department [2004] 1 AC, HL [31]

The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.

This investigative duty is most often discharged by way of coroners inquests and public inquiries, although the distinction between the two is becoming increasingly less clear as inquests become longer and more complex.

Coroners inquests – an expanding role

Coroners inquests are legal inquiries into the causes and consequences of a death triggered by unusual circumstances, for example, as a result of a violent act, accident, injury or surgical operation.

Inquests are only meant to concentrate on the “factual” circumstances surrounding a death, and as such are not supposed to result in criminal or civil blame. However, in recent years coroners have often been providing “narrative” verdicts which can include a finding of “neglect” or “unlawful killing”. The idea that coroners inquests do not lead to criminal or civil liability has therefore become something of a legal fiction. For example, coroners have repeatedly used their jurisdiction to criticise the Government over army equipment failures.

The wider role of coroners inquests has also eroded the distinction between inquests and public inquiries, becoming longer, more complex and requiring full legal representation; for example the long and expensive inquest into the death of Princess Diana. The upcoming inquest into the 7/7 bombings is likely to accelerate this trend, with the coroner, Lady Justice Hallet, saying that she will investigate the role of MI5 and police prior to the 2005 terrorist attacks.

The position of coroners is soon to undergo significant changes as a result of the passing of the Coroners and Justice Act 2009, although the schedule for its implementation is yet to be decided. When implemented, the Act will create a national framework for the coroners system, the absence of which has thus far led to wide variations in the style and substance of corners inquests nationally. It will also create the office of the Chief Coroner, Her Majesty’s Inspectorate of Courts Administration will, for the first time, be able to inspect coroners’ courts. This will subject coroners courts to similar scrutiny as public inquiries have been placed under as a result of the Inquiries Act 2005.

Public inquiries – out of hand?

In difficult cases which involve more people or potentially serious failings by the state, the investigative obligation can also lead to the requirement to conduct public inquiries. There are no hard and fast rules as to whether an event will lead to a public inquiry. As, a website set up to provide information about setting up, running and conclusion of public inquiries, puts it:

Historically they have ranged from events which suggest a breakdown in the rule of law, such as the Scott Inquiry, through those which have caused a single death, such as the Victoria Climbié Inquiry, to matters that concern numerous deaths, such as the Shipman Inquiry or the Marchionness-Bowbell Inquiry. The common factor in every public inquiry is the pressing public concern that something has happened that must be investigated openly and fairly by a body that is independent of the problem.

There have been around 40 major public inquiries in the UK since 1990, and 20 in the past decade. The most high-profile in recent times has been the Chilcott Inquiry into the Iraq war, much of which was for the first time broadcast over the internet, therefore emphasising the role of public inquiries to subject controversial issues to public scrutiny.

Public Inquiries proliferated under the previous government, albeit on a much smaller scale than the Saville Inquiry. Upcoming inquiries include the Al Swaedy Inquiry into allegations of the unlawful killing and mistreatment of Iraqis by British soldiers after the “Battle of Danny Boy” in Iraq in 2004. This was set up by the previous government and follows the Baha Mousa Public Inquiry into other deaths in Iraq, which has just completed its oral hearings.

It was not just the previous Government which had a taste for public inquiries, however. Since coming to power, the Coalition government has promised two new wide-scale inquiries; into complicity in torture by the British government during the ‘war on terror’, and into failings hundreds of possibly unnecessary deaths at Stafford Hospital. Both inquiries are the result of legal challenges by the families of the dead.

Under threat

The uproar over the cost of the Bloody Sunday Inquiry may now lead to a re-examination of the need for and role of public inquiries. According to the Daily Mail, the Justice Secretary told Sky News:

Saville, as an inquiry, has been a disaster in terms of time and expense.’ He said judges would continue to be asked to run investigations into ‘ difficult subjects’, but added: ‘We are anxiously considering how we can stop such inquiries getting ludicrously out of hand in terms of cost and length as the Saville inquiry was allowed to do.’

The Saville Inquiry cost around £205m, if the £15m costs of moving the Inquiry to London are included in the final sum. But as we posted last week, due to changes in the law resulting from that inquiry, it would not be possible for the same to happen again as the government now has much more control. The Inquiries Act 2005 gave ministers new powers to set the terms of reference of an inquiry, withhold costs if part of an inquiry goes beyond those terms of reference, or even suspend or terminate the inquiry.

Despite this, the Justice Secretary said:

There are going to be, you have to have, very highly paid lawyers. But there is no doubt that the kind of sums we spend now on public inquiries, the kind of sums we spend now on some parts of legal aid, vastly exceed anything that we would have contemplated when I was in practice.’

He added: ‘So, like everything else across the whole public sector really, you have to go back to the beginning and say, “you know, why is it costing so much more?”‘

Duty to investigate remains

The Justice Secretary’s comments in relation to future public inquiries will be of worry to those who have been affected by various government-linked disasters and who have been promised full public inquiries. It may be that the new Justice Secretary is following the example of his colleague in the Home Office by riding a wave of public anger which in reality aims to deflect criticisms back to the previous government.

In reality, Ken Clarke will be well aware that the Bloody Sunday Inquiry cannot be taken as a typical example of a modern public inquiry. Rather, its cost and overrun was precisely what led the last government to drastically increase its powers to prevent inquiries getting out of control in the future. By contrast to the £200m which it is claimed the Saville Inquiry cost, the Baha Mousa Public Inquiry, which is drawing to a conclusion, has so far cost over 20 times less.

It may be the case that there simply isn’t enough money available to pay for public inquiries and inquests on the scale seen in recent years. But, any restrictions on the resources provided in order to fulfil its investigative obligation will almost certainly leave the state vulnerable to human rights challenges.

Read more:

  • Update 17/06/10 – Louise Blom Cooper writing in the Guardian:

The Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Salmon recommended that some of the procedural safeguards of the legal system should apply to public inquiries… The Salmon recommendations were never enacted, but the practice, until the Scott inquiry on arms to Iraq over four years in the mid-1990s, has been to adopt the legalisms of Lord Salmon, including, vitally, the issue of “Salmon letters” to individuals alerting them to potential criticism. The legal rights of witnesses are not directly in jeopardy. At worst, their reputations are at stake.

One is driven to the conclusion that, until the Inquiries Act 2005abolished the 1921 act, tribunals had been hijacked by the legal profession… Public inquiries should, as was always intended, be essentially creatures of public administration, and not be regarded as a means of pinning the blame on individual parties.

With thanks to Onyeka Onyekwelu who helped research this post

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: