Does “bringing rights home” mean bringing problems home too?

13 June 2011 by Matthew Hill

McCaughey & Anor, Re Application for Judicial Review [2011] UKSC 20 (18 May 2011)- Read judgment

The Supreme Court has followed the European Court of Human Rights in ruling that an inquest into the death of two people killed before the introduction of the Human Rights Act is still bound by the rules laid down by that Act. In so doing, it preferred a “poorly reasoned and unstable decision” of the Strasbourg Court to a clearly drafted Act of Parliament and a recent decision of the House of Lords. How did this happen, should it have done so – and does it really matter?

The case concerned an appeal to the Supreme Court against a decision from the Northern Ireland Court of Appeal on which we have previously blogged at length.  The appellants were the families of two men killed by the British Army during an attack on a police station in Northern Ireland in 1990. Allegations were made that a “shoot to kill policy” was being operated by the security forces.

The inquests were delayed, but when the appointed Coroner held preliminary hearings in 2009 he indicated that he would take a broad approach to the scope of his investigations, which would include matters such as the planning of the Army operation, the state of knowledge of those involved and the nature and degree of force used. The Police Service of Northern Ireland and the Ministry of Defence made representations to the effect that this approach was too broad and in the arguments that followed the issue of whether or not the inquest was subject to the enhanced investigative duty imposed by Article 2 of the European Convention on Human Rights (the right to life) was raised.

The PSNI and MOD argued that it was not, citing the case of Re McKerr [2004] 1 WLR 807, in which the House of Lords held that Article 2 was not engaged in respect of investigations into deaths that occurred before the commencement of the HRA. The families argued that Re McKerr had been rendered obsolete by the recent Strasbourg decision of Šilih v Slovenia (2009) 49 E.H.R.R. 37.

The decision in Šilih is analysed in the previous blog on this topic and it is not intended to repeat that here. In short, the Court held that the enhanced investigative duty under Article 2 was “detachable” from the death itself, so that in certain circumstances the duty could apply to deaths that took place before a country ratified the Convention. This decision was criticised on two main grounds, not least by the dissenters within the court, who included the UK judge Sir Nicholas Bratza. First, it offended against the principle that laws should not have retroactive effect. Second, the circumstances in which the enhanced duty would be engaged were very poorly defined (in the following terms):

“[162] First, it is clear that, where the death occurred before the critical date, only procedural acts and/or omissions occurring after that date can fall within the Court’s temporal jurisdiction.

[163] Second, there must exist a genuine connection between the death and the entry into force of the Convention in respect of the respondent State for the procedural obligations imposed by article 2 to come into effect. Thus a significant proportion of the procedural steps required by this provision … will have been or ought to have been carried out after the critical date. However, the Court would not exclude that in certain circumstances the connection could also be based on the need to ensure that the guarantees and the underlying values of the Convention are protected in a real and effective manner.”

The Supreme Court Decision

The issue for the majority Supreme Court was summarised by Lord Phillips. On the one hand, there was the clear and principled decision in McKerr that the HRA did not have retroactive effect. On the other, there was the “Mirror Principle”, contained in Act itself, that “the ambit and application of the Act should mirror that of the Convention” [58-60], so that “human rights were brought home”. For Lord Phillips, and the other five judges in the majority, the Mirror Principle won out [62, per Lord Phillips]:

“It would not be satisfactory for the Coroner to conduct an inquest that did not satisfy the requirements of Article 2, leaving open the possibility of the appellants making a claim against the United Kingdom before the Strasbourg Court. On the natural meaning of the provisions of the HRA they apply to any obligation that currently arises under Article 3. These appeals are concerned with such an obligation.”

As a statement of the general approach of the UK courts to the evolving Strasbourg jurisprudence, this is unsurprising. Indeed as Lady Hale said in her judgement [93], “We have not so far failed to follow a decision of the Grand Chamber.” However, there are two significant features of the case that make the decision to do so again interesting.

First, the Justices were agreed that the decision in Šilih was, at the very least, unfortunately expressed. Lady Hale referred to the circumstances in which Article 2 would apply as “ill-defined” [81], Lord Phillips noted that they were “far from clear” and at points, “totally Delphic” [49].

In his blistering dissenting judgment, Lord Rodger noted that it would be “a work of supererogation for me to criticise the [Strasbourg] court’s legal analysis … or to emphasise the blow to legal certainty which it has struck.” [151] This did not, however, stop him. He referred to the appellant adopting a “novel twist to the thinking behind the HRA … that this court should bring the many problems created by Šilih home from Strasbourg” [154], criticised the “poorly reasoned and unstable decision” [160], and associated himself with Sir Nicholas Bratza’s “concise, authoritative and trenchant” dissent [151]. Coming off his long run, he concluded that “it can safely be said that no Parliamentary counsel would ever have inserted a transitional provision that even remotely resembled the supposed ‘principles’” contained in the paragraphs of Šilih quoted above.

Second, and the central argument in Lord Rodger’s dissent, by following Šilih the Supreme Court was adopting a European approach to interpreting a European Convention, and applying it to a domestic statute. It was not in dispute that from the moment of the death in 1990, the UK had an international law obligation under Article 2 to launch an enhanced investigation. What the case was about was whether the HRA should be interpreted retroactively to allow this obligation to be enforced by a domestic court. For Lord Rodger, the fact that the Strasbourg Court in Šilih had allowed its Convention to have a retroactive effect was not decisive of how the HRA should be interpreted by the Supreme Court. He held that the terms of the HRA (and the decision in McKerr) clearly did not allow that. He concluded:

“If, having deciphered Šilih, Parliament feels moved to amend the HRA so as to impose an obligation on public authorities to investigate deaths which occurred before the HRA came into force, it has every opportunity to do so. It has not done so over the last two years [since Šilih]. Somehow, I would be surprised if it did so in the future.”

A new bout of uncertainty?

Does, then, the adoption of a poor Strasbourg decision herald a new bout of uncertainty about the interaction of Article 2 and coronial law at a time when the arguments over Middleton or Jamieson inquests seemed to have quietened? It is submitted that it probably does not, but that the excessively vague drafting of Šilih does not allow for certainty on this point.

The primary reason for suggesting that the effect will be limited is the approach that the Court took to McKerr. That case was argued on the basis that the enhanced investigative obligation under Article 2 was a continuing duty, which required the UK to establish investigations into relevant deaths that occurred before the HRA. The House of Lords rejected this argument, and the Supreme Court agreed [47 and others]; it was the Šilih concept of a detachable duty, rather than a continuing one, that was adopted. Importantly, this ensures that the state is not under an obligation to open or renew inquests into any controversial historical death. It is only if the Šilih conditions are met that the enhanced duty is triggered, and paragraph 162 (quoted above) provides that the duty will only apply to procedural acts or omissions after the date at which the relevant treaty or statute came into effect.

In McCaughey, the relevant procedure was the Inquest; this commenced in 2009, after the HRA came into force, and hence the duty could be triggered. In short, if a delayed inquest is going to be held into a pre-HRA death, and if the circumstances of that death would have triggered a Middleton inquest had it occurred post-HRA, the inquest should be a Middleton inquest. If an inquest has already been concluded, Šilih cannot be used to re-open it.

The main effect of the decision will be in Northern Ireland, where a number of inquests into deaths in the Troubles have yet to be held. Where these involve state forces, inquests will probably have to comply with the enhanced investigative duty under Article 2. However, it is possible that the decision will have a wider impact, or at least encourage further litigation. As Lord Rodger pointed out, this is the consequence for legal certainty of feeling obliged to adopt an unstable, poorly reasoned and inadequately drafted judgment.

There is one final point – does any of this actually matter? In 2009, the Coroner in the present case set out a proposed investigation that is almost certainly compliant with the enhanced duty under Article 2. Although the MOD and PSNI objected on the basis that this duty did not arise, a Coroner has a wide discretion as to the scope of the inquest. As Lord Phillips noted in his judgment [11], even if the MOD and PSNI position had been upheld it was “by no means clear” that the Coroner would have been prohibited from taking the approach that he had proposed. This comes back to the limited difference between Jamieson and Middleton inquests, and the utility in maintaining the distinction between them. It is submitted that a simple legislative tweak to ensure a uniform, Middleton approach is preferable to seeing yet more time, money and effort being spent on proceedings arguing over the often minimal distinction between the “circumstances” and “means” of a death.

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• Feature | The duty to investigate deaths under human rights law: Part 1 / Part 2