In re McKerr (AP) (Respondent) (Northern Ireland)
34. This view is confirmed by another feature of the case. As already emphasised, by enacting the Human Rights Act 1998 Parliament created domestic law rights corresponding to rights arising under the Convention. When doing so Parliament chose not to give the legislation retroactive effect. In relation to article 2 the intention of Parliament, as interpreted above, was not to create an investigative right in respect of deaths occurring before the Act came into force. The common law right urged on behalf of Mr McKerr would accord ill with this legislative intention. The effect of the propounded right would be to impose positive human rights obligations on the state as a matter of domestic law in advance of the date on which a corresponding positive obligation arose under the Human Rights Act.
35. These considerations point ineluctably to the conclusion that the suggested common law right cannot properly be fashioned by the courts. I would allow this appeal and dismiss these proceedings.
36. The deliberate killing of individuals under suspicion of subversive activities by agents of the state is something that one associates with lawless totalitarian regimes. That is not to say that in liberal democracies such events cannot occur. The difference between totalitarian states and democracies lie in their response to a serious allegation that such targeted killings took place. It would be antithetical to the nature of a totalitarian state to permit such killings to be investigated. On the other hand, in modern times liberal democracies have progressively become ready to undertake investigations in such cases. In the domain of the European Convention on Human Rights Article 2 spells out a fundamental right to life, and by the jurisprudence of the European Court of Human Rights, a fundamental right of the family of a person killed by agents of the state to demand that the state must promptly and effectively investigate the circumstances in which the death occurred.
37. In a period of about a month between November and December 1982, in three separate incidents, six men were shot and killed by police officers of a special mobile support unit of the Royal Ulster Constabulary. The killings took place in Armagh. None of the men killed were armed. One man was shot in the back. There were two trials but none of the police officers were convicted. The present case relates to Gervaise McKerr who was shot and killed, with others, on 11 November 1982. A criminal trial of three police officers resulted in their acquittal. Gervaise McKerr's family wanted a proper and effective inquest into the circumstances of his death. The government strongly resisted an investigation.
38. On 7 March 1993 an application was lodged with the E.Ct.H.R. alleging various breaches of the E.C.H.R. On 4 May 2001 the E.Ct.H.R. unanimously found that there had been a failure to comply with the procedural obligation implied in Article 2 to investigate promptly and effectively a case where an individual had been killed as a result of the use of force: McKerr v United Kingdom (2002) 34 EHRR 20.
39. The E. Ct. H.R. identified the following concerns in its decision:
The court concluded that the concerns had not been adequately addressed and listed the shortcomings of the procedures adopted: para 157. The question whether there had been a policy to kill individuals suspected of subversion activities was unresolved. The court concluded that there had been a violation of the procedural obligation. The court made an award of £10,000 by way of compensation. This sum has been paid.
40. The supervision of the judgment in the present case is being conducted by the Committee of Ministers pursuant to Article 46 of the E.C.H.R. The outcome is not yet known.
41. Reinforced by the judgment in Strasbourg, and twenty-one years after the death of his father, Mr Jonathan McKerr wants an effective investigation of the circumstances in which his father died. Despite the judgment of the E.Ct.H.R., the Secretary of State refuses to permit such an investigation. The Court of Appeal of Northern Ireland found in favour of the son. The court concluded (para 13):
Still resisting any investigation the Government challenges the decision of the Court of Appeal.
42. Mr McKerr's case is crucially dependent on the applicability of section 6(1) of the Human Rights Act 1998. It provides:
The relevant Convention right is Article 2. It provides expressly that everyone's right to life shall be protected by law. By necessary implication it places an independent procedural obligation on the state to investigate promptly and effectively cases where agents of the state cause death by the use of force. The existence of this implied obligation under Article 2 was first spelt out by the E.Ct.H.R. in McCann and Others v The United Kingdom (1995) 21 EHRR 97: for a review of the subsequent European jurisprudence see Lester and Pannick, Human Rights Law and Practice, 2nd ed, 2004, 4.2.31-4.2.39 and Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004, 27-40. In order to have a cause of action under the 1998 Act, Mr McKerr must however have the status of being a "victim" within the meaning of section 7(1).
43. On the facts of the present case, and because Mr McKerr has received compensation, the Government argues that he lacks the standing of being a victim. On this simple ground it is said that the door of the court is closed to him. In my view this argument is wrong. But for the receipt of compensation Mr McKerr was unquestionably a victim. After all, he is a son questioning why his father was killed by agents of the state. The E.Ct.H.R. made the award of compensation on the basis that, due to the violation of the procedural obligation, the son "suffered feelings of frustration, distress and anxiety": para 181. In other words, the failure to carry out an investigation promptly and effectively caused the son mental suffering and for that an award of compensation was made. The procedural obligation remains unfulfilled. The state has never conducted a proper investigation into the death of Mr McKerr's father. The compensation was plainly not intended by the E.Ct.H.R. to be the price which, if paid, relieved the Government of its unfulfilled procedural obligation even in circumstances where such an obligation was still capable of being fulfilled. Nothing in the judgment of the E.Ct.H.R. supports such an implausible idea. I would reject this argument.
44. It is now necessary to turn to the principal issues. They are formulated in the Agreed Statement of Facts and Issues as follows:
Before I consider these legal issues it is necessary to consider a separate and anterior point which, if meritorious, makes it unnecessary to consider these important points of law.
45. On behalf of the Government the Attorney-General placed before the House in written and oral submissions an argument that an effective enquiry is as a matter of fact no longer possible. He referred the House to the decision of the E.Ct.H.R. in Finucane v United Kingdom (2003) 37 EHRR 29, and in particular to paragraph 89 of the decision of the court which reads as follows:
The Attorney-General submitted that in this case an effective enquiry is no longer possible. He submitted that there cannot be a continuing duty to do something when it is impossible to do it. If this premise is right, I would accept that it would be the end of the matter under domestic law. The domestic court, in this case the House of Lords, would not make an order designed to ensure that a plainly useless enquiry is embarked on. This would be a sufficient basis for allowing the appeal of the Government. The question is whether this submission is right. It having been advanced I must deal with it.
46. One would have expected an affidavit from the state explaining why an investigation is impossible. To such an affidavit I would have paid the closest attention. There is no affidavit. The strategy has been to steer clear of the facts. The observations of the Attorney-General that an enquiry is no longer possible, unsupported by evidence, have no more weight before the House than that of any other advocate or litigant in this case who is parti pris. In any event, counsel for Mr McKerr pointed out that the fruits of police investigations are still in existence; the transcripts of the criminal trials are available; and there is available the Stalker/Sampson report consisting of 3609 pages in twenty separate volumes including one album of maps and photographs. If an inquest were to be held, it would be up to the coroner to read the latter report and consider whether it should be put in evidence. So far neither the coroner in Northern Ireland nor any judge considering the matter has read the report. In Northern Ireland judicial review proceedings it was held that the report is irrelevant. How one can say, in advance of studying it, that it is not relevant I do not understand. The E.Ct.H.R. was clearly sceptical. So am I.
47. A subtext of the Attorney General's submission was the suggestion that there are legal impediments to holding an enquiry. So far as the Attorney-General said that witnesses would not be compellable, this problem has been removed by legislation: Coroners (Practice and Procedure) (Amendment Rules (Northern Ireland) 2002. In the domestic legal system there is also no impediment to making an order that the inquest should be re-opened: Leckey and Greer, Coroners' Law and Practice in Northern Ireland, 1998, 15-02; In re McCaughey and Another (Unreported) 20 January 2004, per Weatherup J., N.I.
48. I am not persuaded that on the basis of materials available an effective investigation of sensible scope is impossible.
49. The critical question in this case is, however, whether the court has jurisdiction to make an order designed to lead to the investigation of a death which occurred before the 1998 Act came into force.
50. The retrospectivity issue now arises. Mr McKerr's case is founded on section 6 of the 1998 Act. Leaving aside proceedings taken at the instigation of a public authority, which are not under consideration, it is now settled law that section 6 is not retrospective: section 22(4) of the 1998 Act; R v Lambert  2 AC 545; R v Kansal (No. 2)  2 AC 69; Wilson v First County Trust Ltd (No. 2)  3 WLR 568 (HL). Mr McKerr's father was killed in 1982. The 1998 Act came into force on 2 October 2000. The Court of Appeal held that there is a continuing breach of Article 2 which requires to be addressed by the Government: para 13. In my view the Attorney-General has demonstrated that this reasoning cannot be sustained. The Government may have been in breach of its obligations under international law before 2 October 2000 to set up a prompt and effective investigation. But those treaty obligations created no rights under domestic law, not even after the right to petition to Strasbourg was created by the United Kingdom Government in 1966. The very purpose of the 1998 Act was "to bring home rights" which were previously justiciable only in Strasbourg: The Government White Paper, October 1997 (Cm 3782). That appears, in any event, to be the consequence of the rule enunciated by the House of Lords in the International Tin Council case that an unincorporated treaty can create no rights or obligations in domestic law: J. H. Rayner (Mincing Lane) Limited v Department of Trade and Industry  2 AC 418. As Lord Hoffmann has pointed out this rule has been affirmed by the House in R v Secretary of State for the Home Department, ex parte Brind  1 AC 696 and in R v Lyons  1 AC 976, and in particular in the leading judgment of Lord Hoffmann in the latter case: para 27. The later decisions rest, however, on the pivot of the International Tin Council decision.
51. Since the International Tin Council decision is regularly cited in our courts, a brief reference to its reception in subsequent jurisprudential analysis may not be out of place. In doing so I acknowledge that the point has not been the subject of argument. A comprehensive re-examination must await another day. But distinguished commentators have criticised what has been called the narrowness of the decision in the House of Lords: see the criticism of Sir Robert Jennings in his 1989 F.A. Mann Lecture ((1990) 39 ICLQ 513, at 524-526); and of Dame Rosalyn Higgins, "The Relationship between International and Regional Human Rights Norms and Domestic Law", in Developing Human Rights Jurisprudence, 1993, Vol. 5, 16-23. The latter writer observed (at 20):
There is also growing support for the view that human rights treaties enjoy a special status: Murray Hunt, Using Human Rights Law in English Courts, 1998, pp 26-28. Commenting on Lewis v Attorney General of Jamaica  2 AC 50 Mr Justice Collins commented that "it may be a sign that one day the courts will come to the view that it will not infringe the constitutional principle to create an estoppel against the Crown in favour of individuals in human rights cases": Foreign Relations and the Judiciary 2002, 51 ICLQ 485, at 497. That is not to say that the actual decision in the International Tin Council case was wrong. On the contrary, the critics would accept the principled analysis of Kerr LJ in the Court of Appeal that the issue of the liability of member states under international law is justiciable in the national court, and that under international law the member states were not liable for the debts of the international organisation: see Mr Justice Lawrence Collins, op cit, at 497.
52. The rationale of the dualist theory, which underpins the International Tin Council case, is that any inroad on it would risk abuses by the executive to the detriment of citizens. It is, however, difficult to see what relevance this has to international human rights treaties which create fundamental rights for individuals against the state and its agencies. A critical re-examination of this branch of the law may become necessary in the future.
53. That brings me to the common law issue. In a careful and helpful argument Mr Treacy Q.C. invited the House to hold that the common law should be developed to recognise a substantive right to life, coupled with a procedural right co-extensive with that enunciated in 1995 in McCann. He pointed out that, unlike cases such as Lyons where there was what he called a legislative "block" in play, there is none in the present case. This argument has considerable force. The fact that there is no authority for such a development is not in itself fatal. In R v Chief Constable R.U.C. ex parte Begley  1 WLR 1475, Lord Browne-Wilkinson, in giving the unanimous opinion of the House, observed (at 1480):
Before embarking on such a course the House would have to take into account that, by and large, the law regarding inquests has been developed in Northern Ireland by statute: see Leckey and Greer, Coroner's Law and Practice in Northern Ireland, 1998, passim. Moreover, the House would have to confront another difficulty. It must be sound principle for a supreme court to develop the law only when it has been demonstrated that the just disposal of cases compellingly requires it. Given that the right to life is comprehensively protected under Article 2 of the Convention as incorporated in our law by the 1998 Act, why is there now a need to create a parallel right to life under the common law? Given that the procedural obligation under Article 2 is comprehensively protected under our law, as held by the House of Lords in R (Amin) v Secretary of State of the Home Department  3 WLR 1169, why is there now a need to create a parallel right under the common law?
54. At a late stage of the appeal before the House I did wonder whether customary international law may have a direct role to play in the argument about the development of the common law. The idea was suggested to me by a valuable article: Andrew J Cunningham, The European Convention on Human Rights, Customary International Law and the Constitution, 1994, 43 ICLQ 537. The writer stated the following propositions :
Along these lines there may be an argument that the right to life has long been recognised in customary international law, which in the absence of a contrary statute has been part of English law since before the 1998 Act came into force. One has to remember, however, that the procedural obligation recognised in McCann only dates from 1995, i.e. thirteen years after the deceased was shot and after the inquest in Northern Ireland was closed. It may be unrealistic to suggest that the procedural obligation was already part of customary international law at a time material to these proceedings. The point has not been in issue in the present case. It has not been researched, and it was not the subject of adversarial argument. It may have to be considered in a future case. The impact of evolving customary international law on our domestic legal system is a subject of increasing importance.
55. I conclude that the common law development has not been made out.
56. I would allow the appeal and dismiss the application for judicial review.
57. On 11th November 1982 a member or members of a unit of the Royal Ulster Constabulary shot and killed Gervaise McKerr while he was driving a car in East Lurgan. They also killed his two passengers. The ensuing investigation into the deaths was protracted and unsatisfactory. Three policemen were tried for murder in 1984 but the judge ruled that the evidence adduced by the prosecution did not raise a case to answer. There was a suspicion that important evidence had been suppressed. The coroner opened an inquest but adjourned it while officers from English police forces conducted further investigations. In 1986-87 they delivered reports to the DPP. In 1988 the Attorney-General announced that he had considered all the available material and decided that it would not be in the public interest to initiate further criminal proceedings. The inquest resumed but the coroner was unable to obtain access to much of the evidence he required. Finally in 1994 the Secretary of State issued a public interest immunity certificate preventing disclosure of the reports of the independent police investigations. At that point the coroner abandoned the inquest, saying that the reasons for which it had been held were no longer achievable.
58. Mr McKerr's mother (and after her death, his son) petitioned the European Commission of Human Rights in 1993, alleging that the United Kingdom was in breach of Article 2 of the Convention: "Everyone's right to life shall be protected by law". In McCann v United Kingdom (1996) 21 EHRR 97 the Strasbourg court held (at paragraph 161) that this requires the State to provide?
59. In Mr McKerr's case, the Strasbourg court decided on 4 May 2001 that the United Kingdom had not complied with this obligation: McKerr v United Kingdom (2002) 34 EHRR 20. The shortcomings were summarised in paragraph 157 of the judgment: the police officers who investigated were not independent from the officers implicated; there was no public scrutiny or involvement of the victim's family in the investigation or the decision of the DPP not to prosecute; the abandonment of the inquest prevented any findings which could have played an effective role in securing a prosecution for any criminal offence disclosed; statements by witnesses who appeared at the inquest were not disclosed in advance to the family; the PII certificate deprived the inquest of relevant evidence; the police officers who shot Mr McKerr were not compellable witnesses; the police investigation was too slow; the inquest did not commence promptly and then went on too long.
60. The Court accordingly found a violation of article 2 and awarded the applicant non-pecuniary damages of £10,000 for "feelings of frustration, distress and anxiety" caused by the inadequacy of the investigation. This sum has been paid. Pursuant to article 46(2) of the Convention, the judgment was sent to the Committee of Ministers which is charged with supervision of its execution. It has, in accordance with its rules, invited the United Kingdom government to inform the Committee of the measures which it has taken in consequence of the judgment. The government has supplied information about legal and administrative changes which have been made but does not propose to hold a fresh investigation into Mr McKerr's killing. The Committee has not yet decided whether the measures notified by the government amount to compliance with the judgment and with the State's duty under article 52 to satisfy the Committee that its internal law enables the rights under the Convention to be effectively implemented.