Judgments - In re McKerr (AP) (Respondent) (Northern Ireland)

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    61.  Mr McKerr's son was dissatisfied with this outcome and on 30 January 2002 commenced judicial review proceedings against the Secretary of State for Northern Ireland seeking a declaration that "in breach of section 6 of the Human Rights Act 1998 and article 2 of the European Convention", he had failed to provide an "article 2 compliant" investigation and an order of mandamus to compel him to provide such an investigation. The principal ground was stated to be that as the Strasbourg court had found a breach of article 2, it was a breach of section 6 of the 1998 Act for the Secretary of State not to hold an investigation which complied with that article.

    62.  Section 6 says that it is unlawful for a public authority (such as the Secretary of State) to "act in a way which is incompatible with a Convention right". Section 1(1) defines "Convention rights" as "the rights and fundamental freedoms set out in" certain articles of the Convention which section 1(3) says are set out in Schedule 1.

    63.  So Mr McKerr says (1) the Convention gives him the right to an effective investigation (2) the Strasbourg court has decided that the United Kingdom has not provided him with one (3) he therefore has a continuing right to such an investigation and (4) the Secretary of State, in refusing to provide one, is acting in breach of his Convention rights. Campbell LJ did not accept stage (3) of this reasoning because he said that the obligation to provide an investigation was discharged by the declaration and order for payment of compensation made by the Strasbourg court. The Court of Appeal, in a judgment given by Carswell LJ, accepted all four stages of the reasoning and made a declaration that the Government had "failed to carry out an investigation which complies with the requirements of article 2."

    64.  In my opinion the reasoning which the Court of Appeal accepted does not sufficiently distinguish between the obligations under international law which the United Kingdom (as a State) accepted by accession to the Convention and the duties under domestic law which were imposed upon public authorities in the United Kingdom by section 6 of the 1998 Act. These obligations belong to different legal systems; they have different sources, are owed by different parties, have different contents and different mechanisms for enforcement.

    65.  It should no longer be necessary to cite authority for the proposition that the Convention, as an international treaty, is not part of English domestic law. R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 and R v Lyons [2003] 1 AC 976 are two instances of its affirmation in your Lordships' House. That proposition has been in no way altered or amended by the 1998 Act. Although people sometimes speak of the Convention having been incorporated into domestic law, that is a misleading metaphor. What the Act has done is to create domestic rights expressed in the same terms as those contained in the Convention. But they are domestic rights, not international rights. Their source is the statute, not the Convention. They are available against specific public authorities, not the United Kingdom as a state. And their meaning and application is a matter for domestic courts, not the court in Strasbourg.

    66.  This last point is demonstrated by the provision in section 2(1) that a court determining a question which has arisen in connection with a Convention right must "take into account" any judgment of the Strasbourg court. Under the Convention, the United Kingdom is bound to accept a judgment of the Strasbourg court as binding: Article 46(1). But a court adjudicating in litigation in the United Kingdom about a domestic "Convention right" is not bound by a decision of the Strasbourg court. It must take it into account.

    67.  If one keeps the distinction between international and domestic obligations firmly in mind, the fallacy in the respondent's reasoning becomes apparent. It can be illustrated by reference to a passage in the judgment of Jackson J in R (Wright) v Secretary of State for the Home Department [2001] Lloyd's Rep (Med) 478. Mr Wright was a prisoner who died after an asthma attack in 1996. The judge found that the investigation into his death did not comply with articles 2 and 3. He then considered whether this gave rise to any rights enforceable in judicial review proceedings:

    "The [Home Secretary] came under an obligation pursuant to articles 2 and 3 of the Convention to set up an effective official investigation. [He] never discharged that obligation. [His] breach of that obligation was not actionable in the English courts before 2 October 2000… Can the claimants now claim any remedy pursuant to sections 6, 7 and 8 of the Act for the continuing breach of articles 2 and 3 since 2 October 2000?"

    68.  After rejecting a floodgates argument, the judge decided that he could. But the fallacy of the reasoning lies in the notion of a "continuing breach" of articles 2 and 3. The judge was concerned with the rights of the claimants in domestic law. Before 2 October 2000, there could not have been any breach of a human rights provision in domestic law because the Act had not come into force. So there could be no continuing breach. There may have been a breach of article 2 as a matter of international law and this may have "continued" after 1 October 2000, although, for the reasons given by my noble and learned friend Lord Brown of Eaton-under-Heywood, I think it unlikely. But that is irrelevant to whether the claimants had rights in domestic law, for which there can be no source other than the 1998 Act. The Act did not transmute international law obligations into domestic ones. It created new domestic human rights. The simple question is whether as a matter of construction, those rights applied to deaths which occurred before the Act came into force.

    69.  Your Lordships' House have decided on a number of occasions that the Act was not retrospective. So the primary right to life conferred by article 2 can have had no application to a person who died before the Act came into force. His killing may have been a crime, a tort, a breach of international law but it could not have been a breach of section 6 of the Act. Why then should the ancillary right to an investigation of the death apply to a person who died before the Act came into force? In my opinion it does not. Otherwise there can in principle be no limit to the time one could have to go back into history and carry out investigations. In R (Wright) v Secretary of State for the Home Department Jackson J. was prepared to accept the possibility of investigations into breaches of article 2 "during the 50-year period between the UK's accession to the Convention and the coming into force of the [1998 Act]". But that was because he regarded an international law right under the Convention as a necessary (and sufficient) springboard for a domestic claim on the basis of a "continuing breach". In my opinion, however, the international law obligation is irrelevant. Either the Act applies to deaths before 2 October 2000 or it does not. If it does, there is no reason why the date of accession to the Convention should matter. It would in principle be necessary to investigate the deaths by state action of the Princes in the Tower.

    70.  I therefore agree with the opinion of Silber J in R (Khan) v Secretary of State for Health [2003] EWHC 1414 (Admin) that the duty to investigate under article 2 did not arise in domestic law in respect of deaths before 2 October 2002. In the Court of Appeal in that case ([2003] EWCA Civ 1129), Brooke LJ, giving the judgment of the Court, disagreed. He said "we do not believe the court at Strasbourg would look at the matter in this way." I daresay it would not. But that is because the court would be concerned with the international obligations of the United Kingdom and not with the extent to which the 1998 Act was retrospective.

    71.  Mr Treacy QC, who appeared for the respondent, said that courts could deal with applications for investigations into past deaths in a pragmatic way. If an inquiry would no longer serve any purpose, they would refuse one. That was a question of remedy rather than the existence of the right. Likewise in the Khan case, Brooke LJ said "If this decision causes practical difficulties in other cases, the solution to those difficulties will have to be worked out on a case by case basis." I do not think it appropriate for human rights to be reduced to a matter of broad judicial discretion in this way. In my opinion Parliament intended section 6 of the 1998 Act to be enforced, but enforced only in respect of breaches occurring after it came into force.

    72.  Mr Treacy submitted in the alternative that, independently of the 1998 Act, the common law had created a right to an investigation which made it unlawful for the Secretary of State to refuse to order one. In my opinion this is an impossible contention. It is true that in R (Amin) v Secretary of State for the Home Department [2003] 3 WLR 1169 Lord Bingham of Cornhill said (at p. 1185) that "a profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under articles 1 and 2 of the Convention." It is perfectly true that the sanctity of life is a value which has directed the development of the common law and the enactment of many statutes which are intended to protect life, provide for the investigation of unnatural deaths and secure the detection and punishment of those who unlawfully kill. A number of statutes concerned with inquests into deaths in England and Wales are mentioned by Lord Bingham in paragraphs 16 and 17 of his judgment and there are similar statutes applicable to Northern Ireland. Some of the grounds upon which the Strasbourg court found that the investigative procedures in Mr McKerr's case did not satisfy article 2 (for example, the rule by which a person suspected of causing the death was not a compellable witness and the limited nature of the verdicts which could be returned by the coroner's jury) were deficiencies in these statutory provisions. But no successful challenge to the legality of the various investigative procedures (the criminal trial, the police inquiries, the inquest) was made at the time and it is far too late to make such a challenge now. Nor is any attempt being made to invoke domestic law procedures to quash the decision of the coroner to abandon the inquest or require another to be held.

    73.  Instead, the respondent, in this part of the argument, asserts a broad common law principle equivalent to article 2 against which the whole of the complex set of rules which governed the earlier investigations can be tested and by which they can be found wanting and be ordered to be rerun under different rules. My Lords, in my opinion there is no such overarching principle and I venture to suggest that the very notion of such a principle, capable of overriding detailed statutory and common law rules, is alien to the traditions of the common law. The common law develops from case to case in harmony with statute. Its principles are generalisations from detailed rules, not abstract propositions from which those rules are deduced. Still less does it provide a solvent for any difficulties which may exist in the rules enacted by Parliament. It is in this respect quite different from the general statements which have now been enacted by the 1998 Act and to which the House gave effect in R (Amin) v Secretary of State for the Home Department [2003] 3 WLR 1169.

    74.  I would allow the appeal and dismiss the application for judicial review.

LORD RODGER OF EARLSFERRY

My Lords,

    75.  My Lords, I too would allow the appeal, for the reasons given by my noble and learned friends, Lord Nicholls of Birkenhead, Lord Hoffmann and Lord Brown of Eaton-under-Heywood. I merely wish to add a short comment on the application of the Human Rights Act 1998 ("the Act") in relation to the death of Gervaise McKerr.

    76.  Ever since the European Convention on Human Rights and Fundamental Freedoms came into effect in international law, the United Kingdom has been bound by its terms. The position under international law did not change in any way on 2 October 2000: that was a significant day in terms of the domestic legal systems of the United Kingdom, but not in terms of international law. Both before and after that date, the obligation on the United Kingdom under article 1 of the Convention was to secure to everyone within its jurisdiction the rights and freedoms defined in Section I of the Convention. Similarly, both before and after that date, the United Kingdom aimed to secure the enjoyment of those rights and freedoms by means of a raft of common law and statutory provisions in its domestic law. If the rights and remedies available in our domestic law proved to be insufficient for this purpose in any given case, then the European Court of Human Rights would find that the United Kingdom had failed to secure the right or freedom and so was in violation of its international law obligation under the Convention. The only difference that the commencement of the Act made - and it was, of course, a significant difference - was to increase the range of provisions available in our domestic law to ensure that people within the jurisdiction enjoyed those rights and freedoms. On the international plane this meant that the United Kingdom should be better placed to fulfil its obligation under article 1 of the Convention.

    77.  Over the years, Parliament has passed many Acts, and public authorities have taken many steps, to secure that, under our domestic law, people should enjoy the rights and freedoms guaranteed by the Convention. The legislation dealt with particular situations, whether or not brought to light by a ruling from Strasbourg. In 1998 Parliament adopted a more elegant and comprehensive solution. The Act reproduces as rights in our domestic law the rights that are to be found in certain specified articles in the Convention and in two of the Protocols: section 1(1) - (3). It then makes it unlawful for public authorities to act or to fail to act in a way which is incompatible with those rights: section 6(1) and (6). Those affected by a breach can rely on these rights; courts and tribunals can grant the relief, remedy or order that they consider just and appropriate if a public authority is found to have acted unlawfully by violating one of them: sections 7 and 8. In any given situation, therefore, a person may rely not only on all the pre-existing rights and remedies afforded by the common law and statute, but also on the relevant new domestic rights set out in schedule 1 to the Act. And, correspondingly, the courts can grant not only the remedies that would have been available to give effect to the pre-existing common law and statutory rights, but also the just and appropriate remedy to give effect to the relevant rights under the Act.

    78.  In the present case the respondent relies on his rights under the domestic law of Northern Ireland. In particular, he says that, by reason of the Convention right under article 2 as set out in schedule 1 to the Act ("article 2 Convention right"), he has the right to a prompt and effective investigation of his father's death. By refusing to carry out such an investigation, he says, the Secretary of State has acted, and continues to act, incompatibly with that right and so unlawfully in terms of section 6(1).

    79.  The respondent's father, Gervaise McKerr, was shot by an RUC officer or officers in 1982. Your Lordships' House has established that, subject to section 22(4), which does not apply in the present case, the Act does not have retroactive effect. So none of its provisions applies to the position in 1982. This means that, in the domestic law of Northern Ireland, the legal rights and duties of the people involved in the events of 1982 are not altered by the Act. In particular, Gervaise McKerr did not enjoy, and is not now to be regarded as having enjoyed, any article 2 Convention right to life under the Act. It follows that his killing, however it may have come about, is not to be regarded as having been incompatible with that Convention right or as unlawful by reason of section 6(1).

    80.  The respondent accepts this, but he fastens on another aspect of article 2. Where the article applies, it is interpreted as requiring the relevant public authority to carry out an effective official investigation of any death which may have resulted from the use of force by agents of the state: McCann v United Kingdom (1996) 21 EHRR 97, 163, para 161. This obligation is variously described as procedural or adjectival, but its purpose is to ensure that the lawfulness of the use of force by state agents resulting in death is reviewed. Without such a procedure the guarantee in article 2 would be ineffective. The Secretary of State does not dispute that interpretation of the article 2 Convention right. It follows, of course, that deaths will have to be investigated even though, as it turns out, the killing was lawful and not in breach of that right. To that extent the right to an investigation can properly be regarded as freestanding.

    81.  What the respondent claims, however, is an article 2 Convention right under the Act to have his father's death investigated even though, as he accepts, the killing did not violate, and is not to be regarded as having violated, any article 2 Convention right under the Act. Such a claim is fatally flawed and must be rejected.

    82.  Like Lord Brown I am doubtful whether, even in international law terms, there was by October 2000 any continuing breach of the relatives' right to an effective investigation of Gervaise McKerr's death under article 2 of the Convention. But, even supposing that there was, that continuing breach of an international obligation was not turned into a continuing breach of an article 2 Convention right in domestic law when the Act came into force. Any breach that there was remained a breach in international law and nothing more. The respondent relies on the Act as part of the domestic law of Northern Ireland. Under the Act the right to an investigation, deriving from an article 2 Convention right, presupposes that the killing could have been in violation of that selfsame Convention right. So, when the respondent's father was killed in 1982, his relatives had no right to an investigation under the Act. Moreover, since the Act is not retroactive, they are not now to be regarded as having had such a right in 1982 or at any time after that. Conversely, the Secretary of State is not to be regarded as having been in breach, or continuing breach, of such a right either in 1982 or at any time after that.

    83.  What the respondent is really saying, therefore, is that, when the Act came into force, it conferred on him a right under article 2 to have his father's death investigated even though his killing was not, and is not to be regarded as having been, in breach of any article 2 Convention right under the Act. Therefore, the respondent is not asking the courts to apply the Act according to its terms, but to amend them so as to fit this case. That cannot be done. If Parliament had intended the rights under article 2 to be split up, with the Act applying differently to the different aspects, then it would have provided for this expressly. The potential objections are obvious. It would be curious to give a right, under the Act, to an investigation of a killing to which the Act did not apply. If there were to be such a right to an investigation, how far back would it go? Speculation is fruitless: what matters is that Parliament could have made, but did not make, any such transitional provision. The obvious conclusion is that the right to an investigation under the Act is confined to deaths which, having occurred after the commencement of the Act, may be found to be unlawful under the Act. The respondent seeks to contradict the policy of Parliament.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

    84.  The respondent's father was one of three men shot dead in Armagh by RUC police officers from a special mobile support unit on 11 November 1982. Within a month three other men had been killed in two similar incidents. The police, it came to be alleged, were operating a shoot to kill policy.

    85.  Try as they might, those like the respondent concerned by these deaths have never managed to secure a fully satisfactory investigation into them.

    86.  The investigations in fact undertaken and the respondent's efforts to improve upon them have already been charted in the speech of my noble and learned friend Lord Nicholls. He has summarised too the judgment of the ECtHR (which became final on 4 August 2001) upon the application made by the respondent's mother on 7 March 1993 and continued by him after her death. Put shortly, the ECtHR found that the various investigations carried out, culminating in the final abandonment of the inquest on 8 September 1994, failed in a number of respects to comply with the procedural obligation implied by Article 2 of the Convention. Awarding the respondent damages of £10,000, the Court said in para 181 of its judgment:

    "[T]he Court has found that the national authorities failed in their obligation to carry out a prompt and effective investigation into the circumstances of the death. The applicant must thereby have suffered feelings of frustration, distress and anxiety. The Court considers that the applicant sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation as a result of the Convention."

    87.  The central question before your Lordships is whether following that judgment the Secretary of State for Northern Ireland (the appellant) is now under an obligation enforceable in domestic law to undertake a further investigation into this killing. By letter dated 5 September 2001 the respondent's solicitors contended that such further investigation is now required "to comply with [the ECtHR's] ruling". The appellant disputes this.

    88.  Campbell LJ at first instance concluded that the obligation to conduct an Article 2 compliant investigation "remained unfulfilled until such an investigation was carried out or a competent court vindicated the right in some other way", but that, the respondent having received a declaration and an order for just satisfaction from the ECtHR, the obligation then came to an end. The Court of Appeal allowed the respondent's appeal. They agreed with Campbell LJ that "there is a continuing breach of Article 2" but, unlike him, concluded that it had not come to an end and that the respondent would remain a victim so long as "no domestic remedy has been afforded to [him]".

    89.  It was not suggested to either court below that, whatever continuing obligation there might be on the international plane to conduct some further investigation, no such duty could arise under domestic law because the Human Rights Act 1998 (the 1998 Act) is not retrospective. That now is the principal argument advanced by the Attorney General on behalf of the appellant.

    90.  The argument essentially comes to this. Under domestic law it only became unlawful for a public authority to act incompatibly with a Convention right on 2 October 2000. Whatever the circumstances of Mr McKerr's death, therefore, Article 2 of the Convention was not engaged by it. On the domestic plane the appellant could not be said to have breached the substantive obligations arising under Article 2. Nor, moreover, could he be said to have breached the procedural obligation to hold a sufficient inquiry into the death—an obligation which the ECtHR first found to be implicit in Article 2 in McCann v United Kingdom (1995) 21 EHRR 97 (the Death on the Rock case) and has developed in subsequent caselaw to the point now reached in this very case, McKerr v United Kingdom (2001) 34 EHRR 20 (and the other three Northern Ireland cases determined in parallel with it). Plainly no Article 2 obligation to investigate McKerr's death could arise under domestic law prior to 2 October 2000. But no more could it arise after that date. It is a procedural obligation properly to be regarded as secondary or ancillary or adjectival to the substantive obligation to protect life, an obligation arising directly out of the loss of a life. True it is that in McCann, where this procedural duty was first articulated, the ECtHR said that "where a victim dies in circumstances which are unclear . . . the lack of any effective procedure to investigate the cause of the deprivation of life could by itself raise an issue under Article 2 of the Convention" (para 193 of the Court's judgment), and true it is too that in the subsequent Strasbourg jurisprudence it has been described as a "freestanding" obligation. That, however, means no more than that the procedural duty arises independently of any demonstrable breach of the substantive obligations arising under Article 2. As stated in paragraph 111 of McKerr itself:

    "The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility."

    91.  The duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when Article 2 rights were enforceable under domestic law, i.e. on and after 2 October 2000.

    92.  Such is the argument and to my mind it is irresistible. To say, as Mr Treacy QC for the respondent does, that the procedural obligation, once engaged, is a continuing one, regarded by the ECtHR here as still continuing at the date of their decision in 2001, is nothing to the point. Even were it so (and, as I shall shortly come to explain, for my part I doubt it is), that would be the position only on the international plane. It would say nothing as to whether, on the true interpretation and application of the 1998 Act, a pre-2 October 2000 death could give rise to a procedural obligation to hold an Article 2 compliant investigation enforceable under domestic law on and after 2 October 2000.

    93.  As for Mr Treacy's alternative contention that, irrespective of whether a right to an Article 2 compliant investigation now arises under section 6 of the 1998 Act, a duty to hold such an investigation in any event arises at common law, and indeed has remained unfulfilled ever since Mr McKerr's death, this in my opinion fails both on authority and principle. By the same token that this House in R v Lyons [2003] 1 AC 976, declined, by reference to a subsequent ECtHR ruling, to hold a pre-1998 Act trial, conducted in accordance with the domestic laws and standards then applicable, unsafe, so too here it would be wrong for your Lordships to condemn as contrary to the common law a series of procedures long since properly concluded in accordance with well-established domestic laws and never challenged save by reference to a substantially later ECHR decision. Nor would it be right to impute to the common law a requirement for the same form of investigation of fatalities as the ECtHR has now found implicit in Article 2. Such a fiction would be unwarranted however profound one's desire to interpret domestic law down the years consistently with our international obligations.

 
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