Judgments - R (on the application of Hurst) (Respondent) v. Commissioner of Police of the Metropolis (Appellant)

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    30.  McKerr decided that in domestic law the article 2 procedural duty applies only in the case of deaths occurring on or after 2 October 2000: the Human Rights Act is not retrospective and the investigatory obligation is necessarily linked to the death itself. (Middleton and R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796, - an appeal heard together with Middleton—were both in fact concerned with deaths occurring before 2 October 2000 but, as stated in the Committee's opinion in each case, no question had been raised there as to the retrospective application of the Human Rights Act and the Convention; rather they were assumed to be applicable and therefore nothing in those opinions was to be understood to throw doubt on the conclusion of the House in McKerr.)

    31.  Against that background it is now possible to state the central issue in this way: would any resumed inquest here be a Jamieson inquest or a Middleton inquest (as I shall describe the fuller process provided for by that decision)? The appellant Commissioner of Police (supported by the Attorney General for the Lord Chancellor as intervener) submits that it could only be a (necessarily inadequate) Jamieson inquest and accordingly that the coroner acted perfectly reasonably in refusing to reopen it. The respondent contends, and the Court of Appeal held, that it would be a Middleton inquest and that the coroner's decision was accordingly irrational.

    32.  It is agreed between the parties (Mrs Hurst and the Commissioner) that the United Kingdom is indeed under an international law obligation pursuant to article 2 of the Convention to conduct a further investigation into the death of the deceased and that, were such obligation sought to be discharged by reopening the inquest, it would need to be a Middleton inquest. The Attorney General, I should note, makes no such concession as to the requirement even under international law for any further investigation: he reserves his position both as to whether the circumstances of this death engaged the article 2 investigatory obligation in the first place and, even were it engaged, as to whether the contested criminal proceedings brought against the deceased's killer in that event satisfied it.

    33.  It might perhaps have been submitted—as in the two Northern Ireland cases (Jordan v Lord Chancellor and McCaughey v Chief Constable of the Police Service of Northern Ireland [2007] UKHL 14) heard together with the present appeal—that even a Jamieson inquest here would satisfy the requirements of the article 2 procedural duty and that the coroner ought in any event therefore to have reopened the inquest. Not only, however, was this nowhere raised in the Statement of Facts and Issues as an issue for your Lordships' determination (and so not addressed either by the appellant or the intervener), but Mr Keir Starmer QC in argument expressly disavowed any suggestion that the coroner's decision could be impugned without reference to the United Kingdom's international obligations under the Convention. Given, moreover, the decision in Middleton that a section 3 construction of the governing legislation was required to enable an article 2 compliant inquest to take place in that (to my mind analogous) case, it is difficult to see how such an argument could have succeeded. The position here is quite different from that arising in the two Northern Ireland cases where the deceased were directly killed by State agents. As McCann had shown, the article 2 obligation in those cases can be satisfied by a Jamieson inquest.

    34.  My noble and learned friends, Baroness Hale of Richmond and Lord Mance, whilst accepting all this, would nevertheless dismiss the Commissioner's appeal and so leave in force the Divisional Court's order that the inquest into Troy Hurst's death be re-opened (or require at least that the Coroner re-take the decision whether or not to re-open it), on the basis that even a Jamieson inquest would be likely, although of course at the Coroner's discretion, to "examine the conduct of the police and the housing authority that fateful day if not before" (para 22 of Lady Hale's opinion). Given, however, as both Lady Hale and Lord Mance in terms accept, that, upon the conclusion of such an inquest, the jury would be debarred from expressing any views whatever upon the conduct which they had been examining (the whole point of a Middleton inquest being, as I have explained above, to enable the jury to state their conclusions on the important underlying issues such as what risks should have been recognised and what precautions taken) the value of such an inquest may be doubted. It might, indeed, be thought the worst of all worlds. Lady Hale and Lord Mance expressly acknowledge that it would not satisfy the UK's international obligations under article 2 of the Convention. Nor would it satisfy the respondent's understandable desire for detailed findings to be made upon the circumstances leading to her son's death. At best it could occasion a report from the Coroner to a responsible authority under Rule 43 (see para 74 of Lord Mance's opinion). Small wonder that such an inquest was not one for which Mr Starmer has ever contended.

    35.  I must turn now in a little more detail to the circumstances in which this death occurred and then indicate something of the course of events leading up to the present appeal.

    36.  The deceased (then aged 39) was stabbed to death by his neighbour, Albert Reid, on 25 May 2000. Both were Barnet Council tenants on the Stroud Green Estate in North London. There had been a long history of disruptive behaviour and violence by Reid towards other tenants on the Estate dating back to 1997. Police and local authority reports record a number of instances of Reid's use and concealment of weapons and threats of violence.

    37.  In April 2000 the Council began possession proceedings against Reid. Reid thought the deceased in part responsible. Increasing concerns about Reid's behaviour were expressed in the weeks leading up to the hearing date, 25 May. One police entry recorded that he was "extremely dangerous and has the potential to seriously injure or kill." In the event the proceedings were adjourned on 25 May and the court refused the Council's application for an injunction in the meantime to remove Reid from the estate. That evening there occurred a series of encounters between Reid and the Hurst family, each reported to the police with increasing urgency. Two of the calls were met with the response that there were "no units available." The final call informed the police of the fatal stabbing. A substantially fuller account of the background to the killing appears in the judgment of the Divisional Court (Rose LJ and Henriques J) [2003] EWHC 1721 (Admin); [2004] UKHRR 139, at paras 39-97.

    38.  On 30 May 2000 an inquest was opened but immediately adjourned pursuant to section 16(1) of the Coroners Act because Reid had been charged with murder. Following Reid's conviction for manslaughter on 16 July 2001 the coroner was strongly pressed to re-open the inquest under the provisions of section 16(3) of the 1988 Act: "After the conclusion of the relevant criminal proceedings . . . the coroner may . . . resume the adjourned inquest if in his opinion there is sufficient cause to do so." By letter dated 19 November 2002 the coroner refused to do so, expressing the view that "all the matters required to be ascertained have been fully explored and ascertained during criminal proceedings." The coroner further found no reason to reopen the inquiry pursuant to the United Kingdom's procedural duty under article 2 of the Convention (upon which the respondent had particularly relied): he did not regard the circumstances of the death as imposing any such obligation on the United Kingdom and, even were that wrong, expressed the view that an inquest would not satisfy it.

    39.  On 4 July 2003 the respondent's challenge to that decision succeeded before the Divisional Court. It was held that notwithstanding that the death occurred before the coming into force of the Human Rights Act a freestanding right arose to an article 2 compliant investigation and that the coroner's refusal to reopen the inquest "breached his obligation under the Human Rights Act to act compatibly with the European Convention." The coroner was accordingly directed to resume the inquest. Before he did so, however, this House decided in McKerr that the procedural duty under article 2 applies in domestic law only to deaths occurring on or after 2 October 2000. Indeed Lord Nicholls expressly stated that the Divisional Court's decision in the present case "fell into error by failing to keep clearly in mind the distinction between (1) rights arising under the Convention and (2) rights created by the 1998 Act by reference to the Convention." The Commissioner of Police of the Metropolis (who had appeared before the Divisional Court as an interested party) thereupon obtained leave to appeal out of time. Unsurprisingly in those circumstances the respondent totally re-cast her case, no longer relying on section 6 of the 1998 Act but instead invoking section 3. As Buxton LJ came to put it in his leading judgment in the Court of Appeal, the respondent sought "to uphold the Divisional Court's order on grounds that were neither before that court nor before the House of Lords in In re McKerr. . . . [The appeal] turned into an inquiry wholly different from that in the Divisional Court"—[2005] 1WLR 3892, 3896 (para 8).

    40.  In the result, the Court of Appeal dismissed the Commissioner's appeal, holding, first, that "[e]ven before the HRA domestic tribunals were bound to give full weight to the United Kingdom's international obligations to be found in the ECHR . . . [and that] it was not open to the coroner in terms of rationality as a matter of English domestic law to conclude otherwise than that the article 2 obligation required the resumption of the inquest" (Buxton LJ at para 29); and, secondly, that the interpretative obligation under section 3 of the 1998 Act is "to give effect to this country's international obligations, and not merely to its domestic obligations as created by the HRA" (Buxton LJ at para 61). On the appeal before your Lordships both those holdings are strenuously contested by the Commissioner and the Lord Chancellor.

    41.  Recognising that her case for a resumed inquest depends upon establishing that it would not be confined to a Jamieson proceeding but held rather in accordance with the broader Middleton approach, the respondent puts her case on two alternative bases. First she seeks to rely on section 3 of the 1998 Act, the argument which succeeded before the Court of Appeal. Secondly she submits that, even assuming section 3 cannot avail her, the Middleton approach must now be applied to all inquests, either because section 11(5)(b)(ii) must now be re-interpreted to bring our domestic law into conformity with our international obligations or because Middleton is now to be regarded as binding authority on the meaning of section 11 in all cases. Both these arguments were rejected by the Court of Appeal (the first simply on the basis that that court was bound by Jamieson).

Section 3

    42.  McKerr concerned a challenge to the Secretary of State's refusal to provide an article 2 compliant investigation into a pre-1998 Act death, a challenge founded on section 6 (1) of the 1998 Act: "It is unlawful for a public authority to act in a way which is incompatible with a Convention right." The House held that "a Convention right" for this purpose meant such a right (as identified in section 1 of the Act) created by the Act in domestic law. Since the Act was not retrospective, the secondary right to an article 2 compliant investigation accordingly arises only in respect of deaths occurring on or after 2 October 2000.

    43.  What the Court of Appeal held in the present case is that McKerr says nothing as to the interpretative obligation under section 3 and that "it is the international obligations of the state that section 3 requires to be used in reading and giving effect to legislation" (original emphasis given by Buxton LJ at para 58). Section 3 provides: "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Those Convention rights, said Buxton LJ (at para 44), mean the rights and fundamental freedoms set out in the various articles of the Convention and they "exist and have force because of the United Kingdom's adherence to the ECHR rather than because of the passage of the HRA."

    44.  For my part I have the greatest difficulty with this approach which necessarily involves construing the words "the Convention rights" where they appear in section 3 differently from their meaning in section 6 ("a Convention right"). But why should they be construed differently? The plain object of section 3 is to avoid where possible action by a public authority which would otherwise be unlawful under section 6. It applies only where there would otherwise be a breach of a Convention right under domestic law. In the present case, as McKerr established, it would not be unlawful under domestic law for no further investigation to be carried out into Mr Hurst's death. The scheme of the 1998 Act and the link between sections 3 and 6 are to my mind plain. This is perhaps most clearly demonstrated by the language of section 6(2)(b), language which expressly mirrors that of section 3: "Subsection (1) does not apply to an act if . . . (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions."

    45.  The Divisional Court in Pearson v Inner London North Coroner [2005] EWHC 833 (Admin) had to confront the very issue now arising. A new inquest into a pre-1998 Act death was there sought under section 13 of the 1988 Act on the ground of insufficiency of inquiry. The main argument before the court was that the coroner had conducted a Jamieson inquest, whereas he should have conducted an article 2 compliant inquest. Maurice Kay LJ (with whom Moses J agreed) rejected the section 3 argument:

    "9 . . . One does not reach the stage of resort to section 3 as a tool for interpretation unless and until it is established that the Human Rights Act applies. In Middleton and Sacker it was simply assumed, without demur, that it applied on a retrospective basis but with the point expressly left open. However, the point was very clearly decided in McKerr. It comes to this. When article 2 provides that 'everyone's right to life shall be protected by law', it embraces both a positive obligation on the state to protect everyone's life and a procedural requirement that there should be some form of effective official investigation when an individual has been killed. The present case is concerned with that procedural obligation. It is not the primary obligation imposed by article 2 but, in the words of Lord Nicholls, 'a consequential obligation'. . . . The logic of McKerr is inexorable. If the positive obligation did not arise in domestic law prior to 2 October 2000, the consequential, secondary, ancillary or adjectival obligation cannot now give rise to a domestic obligation because it is consequential upon and secondary, ancillary and adjectival to the substantive obligation to protect life. I am driven to the conclusion that if the Appellate Committee in Middleton and Sacker had been required to address this question, it would have yielded to the same inexorable logic."

    46.  Buxton LJ disagreed with that conclusion: it was clear, he said, that "the Divisional Court did not have the benefit of the detailed argument that has been deployed before us." For my part, however, and despite Mr Starmer's "detailed argument", I find Maurice Kay LJ's judgment compelling. It is true, of course, that section 3 was not in play in McKerr: what was there under challenge was the Secretary of State's refusal to exercise a general administrative discretion to set up an inquiry. I cannot suppose, however, that our conclusion there would have been different had it been a section 3 case. Otherwise, as in Pearson itself, section 13 of the 1988 Act could be invoked in all these old cases with a view to the ordering of a new inquest—precisely the concern expressed by the House in McKerr. As Lord Hoffmann put it (at para 67):

    "[T]he 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."

    47.  Although the respondent sought to pray in aid passages from the opinions of this House in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, nothing in that case appears to me inconsistent with this view: on the contrary, as Lord Rodger of Earlsferry observed at para 204:

    "Parliament must have intended all the operative provisions of this particular statute to take effect in the same way in respect of any given Convention right."

    The contention that Middleton now applies to all inquests

    48.  Neither way the argument is put do I find persuasive and both were rightly rejected by the court below. Middleton clearly accepted that Jamieson was correctly decided. Were it otherwise, the House could simply have overruled it without recourse to the Human Rights Act at all, let alone section 3. It is plain that the House was not intending the Middleton approach thereafter to apply in all cases. In the first place, an article 2 investigative obligation only arises in the comparatively few cases where the state's responsibility is or may be engaged. Secondly, even where the obligation does arise, it will often be satisfied without resort to a Middleton inquest—in some cases by criminal proceedings, in particular "where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death" (para 30 of the Committee's opinion delivered by Lord Bingham of Cornhill); in others, like McCann, where "short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest" (para 31 of the opinion). All this is clear from the Committee's opinion which in terms recognises (para 36) that only sometimes will a change of approach be called for.

    49.  Why, then, should Jamieson now be re-interpreted? The difficulties with such a proposition seem to me many and various. The first is this. The contention that Jamieson must be re-interpreted to enable the United Kingdom to satisfy its international law obligation in those cases where otherwise it would be breached (no domestic law obligation ex hypothesi being engaged in respect of a pre-Human Rights Act death) flies in the face of the conclusion already reached as to the effect of McKerr: if McKerr necessarily precludes the use of section 3 to achieve the contended for result, so too surely it must preclude the achievement of the same result by the back door route now suggested. That aside, any contention for the re-interpretation of section 11 (5)(b)(ii) requires first that it contains a relevant ambiguity i.e. that it is capable, within the ordinary canons of construction, of bearing one or other of two possible meanings. Again, however, that seems to me irreconcilable with the House's opinion in Middleton which, in widening the meaning of "how", expressly relied on section 3. Section 3 is only invoked where, to achieve compliance with the Convention, the court must depart from the unambiguous meaning the legislation would otherwise bear. Nor is it surprising that the House in Middleton thought it necessary to resort to section 3: Jamieson apart, there was a series of authorities stretching back to R v Walthamstow Coroner, Ex p Rubenstein (unreported, 19 February 1982) (itself cited in Jamieson) which had similarly construed the provision.

    50.  Even, moreover, were the respondent's argument to satisfy the threshold condition of ambiguity, she would still have to show that it would be appropriate to resolve that ambiguity by reference to the presumption "that Parliament intended to legislate in conformity with the Convention, not in conflict with it" (Lord Bridge of Harwich's formulation of this principle of construction in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696,747-748). That too, however, presents the respondent with real difficulties. The meaning of the word "how" in this legislation was, as stated, first established in Ex p Rubenstein in 1982. Not only was the 1988 Act (in which the present provision appears) itself a consolidating Act (and concerned, therefore, to enshrine the existing law) but it was enacted at a time when Parliament can have had no thought that one day the United Kingdom might be under a procedural obligation to enquire into deaths pursuant to article 2 of the Convention. As already observed, it was not until 1995 that the European Court of Human Rights in McCann itself identified any such Convention duty. And, as the Commissioner points out, even had Parliament been aware of this duty, it might well have thought it sufficiently or better discharged by other means: criminal proceedings, a judicial inquiry or some different process. It can hardly be supposed that Parliament would have wanted the wider Middleton approach to be adopted for all future inquests.

    51.  It should be noted that the Jamieson interpretation of the word "how" does not, of itself, place the United Kingdom in conflict with its international law obligations. True it is that in Middleton the Committee said that: "In the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2" (para 47). That, however, is very far from saying that section 11 must accordingly be construed in all cases to require a Middleton inquest. Mr Starmer suggested that it would be for the coroner in each case to decide whether a Middleton inquest was appropriate. That, however, cannot be. Of course, the scope of the inquiry is ultimately a matter for the coroner. The "verdict" and findings, however, are not. The Jamieson construction of "how" severely circumscribes these. But where the Middleton construction applies, the verdict and findings are not merely permitted, but required to be wider: section 11 dictates that the inquisition "shall set out, so far as such particulars have been proved . . . how . . . the deceased came by his death." If in every case that means "in what circumstances" as well as "by what means", the coroner will inevitably in many cases have to widen the scope of the inquiry beyond that which, under the Jamieson approach, he would otherwise regard to be appropriate.

    52.  I turn, therefore, to the other limb of this argument, the submission that Middleton is now binding authority on the meaning of section 11 in all circumstances, a conclusion, as already explained, plainly contrary to what the House in Middleton intended. The answer to it in my judgment is to be found, as the intervener argues, in the analogous field of European Community law where, pursuant to Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR I-4135, a similarly strong interpretive obligation is imposed on member states to construe domestic legislation whenever possible so as to produce compatibility with European Community law. The closeness of this analogy has been recognised by the House in Ghaidan v Godin-Mendoza [2004] 2 AC 557—see particularly Lord Steyn's opinion at para 45. Where the Marleasing approach applies, the interpretative effect it produces upon domestic legislation is strictly confined to those cases where, on their particular facts, the application of the domestic legislation in its ordinary meaning would produce a result incompatible with the relevant European Community legislation. In cases where no European Community rights would be infringed, the domestic legislation is to be construed and applied in the ordinary way. Thus in R v Secretary of State for Transport, Ex p Factortame Ltd [1990] 2 AC 85, Part II of the Merchant Shipping Act 1988 was to be disapplied in those cases where its operation would infringe directly effective European Community rights; but not otherwise. Similarly in Imperial Chemical Industries plc v Colmer (Inspector of Taxes)(No 2) [1999] 1 WLR 2035 the House, following a reference to the Court of Justice of the European Communities (Imperial Chemical Industries plc v Colmer [1999] 1 WLR 108), held that ICI remained bound by domestic legislation upon its ordinary meaning notwithstanding that in certain circumstances such a construction would be incompatible with European Community rights. This principle was again applied by the Court of Appeal in Gingi v Secretary of State for Work and Pensions [2002] 1 CMLR 587 where Arden LJ expressly approved the following passage from Bennion, Statutory Interpretation, 4th ed (2002), p1117:

    "It is legitimate for the national court, in relation to a particular enactment of the national law, to give it a meaning in cases covered by the Community law which is inconsistent with the meaning it has in cases not covered by the Community law. While it is at first sight odd that the same words should have a different meaning in different cases, we are dealing with a situation which is odd in juristic terms."

    Buxton LJ, who gave the leading judgment in Gingi, recognised the relevance of the principle to the present case and, as already stated, rejected this limb of the respondent's argument. He was right to do so.

The third issue

    53.  The third issue for the House's determination on this appeal (stated as issue two but more conveniently dealt with in the light of the conclusions reached on the other two issues) is whether, in exercising his discretion under section 16(3) of the Coroners Act, the coroner would require to take into account the United Kingdom's international obligations under article 2. Having myself reached the conclusion that, even were the inquest now to be re-opened, it could only proceed in accordance with the Jamieson approach, the third issue collapses: the Court of Appeal's conclusion that it was irrational not to resume it was necessarily dependent upon their holding that section 3 applied (or upon the respondent making good her alternative argument for saying that a Middleton inquest would now be held).

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