The mirror crack’d from side to side: Dalton’s application for judicial review [2023] UKSC 36

5 January 2024 by anuragdeb

In Lord Tennyson’s Arthurian ballad ‘The Lady of Shalott’, the eponymous heroine is stranded in her island castle. Continually weaving a web in her loom of the reflections of the outside world she sees in her mirror, she knows she will be cursed if she stops and looks out to nearby Camelot. But one day, Sir Lancelot rides by her castle and she abandons her loom and looks outside. Her mirror cracks “from side to side” and she is cursed. She leaves her castle and floats down to Camelot in a boat, dying before she reaches it.

Victorian poetry scholar Erik Gray analyses the Lady of Shalott as Tennyson’s exploration of the role of an artist: knowing what is better (staying inside and looking at reflections of the real world) and choosing to do what is worse (going outside into the real world). Just as the Lady of Shalott’s mirror cracked, the Supreme Court in Dalton’s application for judicial review marked possibly one of the largest cracks yet in the mirror principle: that the rights provided under the Human Rights Act 1998 (HRA) should mirror those under the ECHR. But this analogy with the Lady of Shalott raises two important questions: was the jurisprudence flowing from the mirror principle better and is the turn away from it worse?

At the outset, I acknowledge my involvement in the Dalton litigation. This post is not an exploration of that litigation. Instead, I look at the possible impact of the Supreme Court’s judgment on the mirror principle and what it may tell us more broadly about the HRA.

The mirror principle

At its core, the mirror principle tells us that the HRA was enacted to give effect in domestic law to rights, the content of which is a reflection of the same rights found in the ECHR. There is one very clear exception to these rights however: article 13 ECHR, being the right to an effective remedy for violations of the ECHR. I return to this point in greater detail below.

The origins, application and issues arising out of the mirror principle have been covered in detail elsewhere. In particular, a 2013 post by Professor Roger Masterman (which partly inspired both the title and analogy used in this post) is a detailed exploration of many of these issues. The main issue in Dalton, however, was how far domestic courts were required to align with the approach of the Strasbourg Court to the issue of temporal jurisdiction over the applicability of article 2 of the ECHR – the right to life.

The right to life and the Troubles

As Lord Reed PSC observed in Dalton, “Virtually all the leading cases in our domestic case law on this issue have concerned deaths occurring in Northern Ireland during the Troubles” [49]. This is hardly surprising. Before the coming into force of the HRA, article 2 bound the UK only at the international level (before the Strasbourg Court). Once the HRA came into force in October 2000, the right as given effect by the statute bound public authorities throughout the UK. Some of the leading cases decided at Strasbourg around this right involved incidents arising out of the Troubles – McKerr, Kelly and Shanaghan being prime examples. The HRA requires courts to take these decisions into account while the mirror principle requires the domestic judicial approach to these rights to align with the approach taken at Strasbourg.

Matters started to become complex when the question arose as to a State’s obligation under article 2 to investigate a death which had occurred before that State’s ‘critical date’ – defined as the date when the ECHR enters into force for that State. In Silih, this obligation was only triggered when there was a ‘genuine connection’ between the death and the entry into force of the ECHR. In Janowiec, the genuine connection would be satisfied when the time between the death and the entry into force was no more than 10 years. Beyond this, only a situation which struck at the foundational values of the ECHR would be allowed to trigger a State’s obligation – the so-called ‘Convention values’ test. Within domestic UK jurisprudence, Silih was given effect in McCaughey (another Troubles-related case) – on the basis of the mirror principle (para 62, Lord Phillips PSC).

A new question then arose: how far back (before the HRA came into force) could a death be before the obligation to investigate it under the HRA was no longer triggered? In Keyu, the killing of 24 unarmed civilians in Batang Kali in 1948, before the advent of the ECHR itself, was ruled out of scope. In Finucane, the murder of solicitor Patrick Finucane which had occurred almost 12 years before the HRA had come into force was ruled within scope. Dalton was about the death of Sean Dalton, a pensioner who, concerned with the welfare of a neighbour he hadn’t seen in a few days, accidentally triggered a Provisional IRA bomb planted in the neighbour’s flat. This bombing, known as the Good Samaritan Bombing, occurred in August 1988 – 12 years and 1 month before the coming into force of the HRA. Consequently, the death was ruled out of scope of the article 2 obligation in domestic law.

The views of the Supreme Court

Dalton is in some respects an unusual case. The seven Justices who presided over the appeal were unanimous in the outcome, but divided (sometimes sharply) on their reasoning. Nowhere is this division more clearly marked than in the context of the mirror principle. Lord Reed PSC and Lord Leggatt JSC observed that the mirror principle did not apply ([39]-[41] and [257], respectively). Lord Hodge DPSC and Lord Sales and Lady Rose JJSC in their judgment held the mirror principle to apply, albeit modified in the context of the temporal jurisdiction of domestic courts under the HRA rather than the temporal jurisdiction of the Strasbourg Court under the ECHR [166]. Lord Burrows JSC and Dame Siobhan Keegan, meanwhile, followed a similar course – modifying the mirror principle in its application to the question of temporal jurisdiction in a domestic context [327]. The effect is that the mirror principle applies – albeit that the critical date is not precisely mirrored in domestic jurisprudence. Instead, in order to satisfy the genuine connection test domestically, we have a maximum backward reach of 10 years from October 2000 – when the HRA came into force – or 12 years in certain exceptional circumstances [172].

Now, as the majority of the Court held the mirror principle to apply (albeit in a modified form), it stands to reason that the Court did not turn away from that principle. But the issue is far from straightforward. One of the most detailed explorations of this issue was from the late Lord Kerr JSC in his judgment in Keyu. Lord Kerr had distinguished the jurisdictions of the Strasbourg Court and domestic courts by reference to the trigger for each. His reasoning at [251] is worth setting out in full:

When a domestic court, applying the HRA, considers the scope of the [ECHR], the date of the recognition of the right of individual petition to [the Strasbourg Court] is not relevant. One can recognise that it has, at least potentially, some relevance for the Strasbourg court since it marks the beginning of the period when that court has been formally invested with jurisdiction to hear individual complaints. But the domestic courts are in a different position. They must ask first whether the facts constitutive of the alleged violation fall within the temporal scope of the [ECHR], and they must then ask whether the autonomous article 2 investigative duty lies within the temporal scope of the HRA. The [Strasbourg Court] asks a different question, namely, whether the matter falls within the temporal jurisdiction of the court, which is regulated by either the date of the entry into force of the [ECHR] in the member state or the recognition of the right of individual petition.

It followed, for Lord Kerr, that the temporal jurisdiction of domestic courts was not the same as that of the Strasbourg Court. Lord Kerr did not fix a backwards reach for this jurisdiction domestically, but was unequivocal in holding that, should October 2000 be used to fix that reach, “[it] would be antithetical to the concept of a continuing duty to investigate a suspicious death when inquiries into that death were begun or should have been continued after the coming into force of the [HRA]” [255]. While Lords Reed and Leggatt did not embark on an exploration as detailed as Lord Kerr’s, they appear to agree that the question of temporal jurisdiction is fundamentally different in a domestic context as compared to Strasbourg. Nevertheless, they too would use October 2000 as the pole star by which to fix the jurisdiction’s backwards reach.

What we are left with, in the light of Dalton, is a clear acknowledgement by the Supreme Court that the mirror has cracked. Five out of the seven Justices modified the mirror principle to take account of a date with which the ECHR has no connection. The majority approached its modification with repeated appeals to legal certainty (Lords Hodge and Sales and Lady Rose at [170] and Lord Burrows and Dame Siobhan Keegan at [342]), which itself is an important principle, both domestically and internationally. Nevertheless, as Lord Kerr had demonstrated in Keyu, legal certainty does not require October 2000 to be set in stone. In other words, there is a reading of the circumstances of Dalton in which the death could have been ruled within the scope of the investigatory duty under article 2 as a matter of domestic law. This is also evident from the judgment itself – the Court was split between those who favoured a strict and absolute 10-year backwards reach (Lords Hodge and Sales and Lady Rose) and those who were somewhat more flexible (Lords Reed, Leggatt and Burrows and Dame Siobhan Keegan). The Court therefore effectively saw better and chose worse. But to what end?

A return to Shalott and a question of remedy

Gray pithily observes of the Lady of Shalott: “To put oneself under a curse – to know that one is getting
things wrong, and yet to pursue – is essential to the experience of creating art.” This might appear to be an overwrought analogy when applied to what we are so often told is the sober business of judging cases. Yet, there is something here – of knowing better and choosing worse – that applies both to Dalton and more broadly the HRA.

When the Human Rights Bill was making its way through the House of Lords, a number of peers pointed to the fact that article 13 – the right to an effective remedy – had not been included in the list of rights which the Bill was being moved to give effect. Some of the most detailed discussion around this issue occurred at the Bill’s second reading in the Lords. The government’s answer to these concerns was simply, “Our view is, quite unambiguously, that Article 13 is met by the passage of the Bill. The answer to the question is as plain and simple as that.” While this was an ambitious claim, its failure to translate to reality is reflected in the words of Lord Burrows and Dame Siobhan Keegan at [337] of Dalton, “even with a 12-year period, rights will not be fully brought home“. Moreover, Lords Hodge and Sales and Lady Rose, at [194], expressly pointed to the fact that the Strasbourg Court has jurisdiction to rule on matters in Dalton which the Supreme Court ruled out of scope for domestic courts. These points make clear the remaining gap, at least in terms of the provision of an effective remedy, between the HRA and the capacity of the Strasbourg Court. To that extent, the Dalton-sized crack in the mirror principle demonstrates the confrontation with reality which is part of the interpretation of law – a reality which shows the HRA falling short of its promise to provide an effective remedy.

The importance of the HRA in the UK is undeniable. It holds state power to account in a way which was historically impossible (for example, through the use of proportionality rather than rationality as a standard by which to judge state action). Although some judges have been critical of the statute distracting legal development away from the common law – to the point of ossifying the latter – we are also told that the common law develops ‘incrementally‘ and the HRA marked a leap which the common law may never have made on its own. Moreover, the domestication of the ECHR through the HRA is a pillar of the post-conflict society promised by the Good Friday Agreement. However, much as the mirror principle may have reflected the possibility of a panacea, decisions such as Dalton allow us to confront the reality of such reflections. In doing so, we may repair the cracks.

In the final stanza of Tennyson’s original 1832 version of his ballad, when the body of the Lady of Shalott reaches Camelot, its citizens discover a note she had written: “The web was woven curiously/ The charm is broken utterly/ Draw near and fear not,—this is I/ The Lady of Shalott.“

Anurag Deb is a PhD candidate at Queen’s University Belfast and a paralegal at KRW LAW LLP. He was involved in Dalton as a paralegal.