The claimants sought a fuller inquest into deaths at the hands of the British Army in 1990 in Northern Ireland. On opening the inquest, the coroner had declined to undertake to hold a hearing compliant with article 2, and it had not made progress. The applicants believed this would require a further investigation of the planning and control of the operation in which the deaths occurred.
Held: The appeal was allowed (Lord Rodger dissenting). The Coroner would have to hold an inquest complying with Article 2.
The Convention was a living instrument, and must be read as applied from time to time. In Silih, the Grand Chamber had departed from its earlier views, finding that in some circumstances the procedural duty to hold a compliant investigation could be detachable and operate as a freestanding one. Before Silih, the jurisprudence in Strasbourg had been that: ‘the procedural obligation was initially closely related to the substantive obligation that article 2 imposed on the state. The object of the procedural obligation was to check whether there had been a breach of the substantive obligation. If the substantive obligation did not exist the procedural obligation could not exist either.’ The decision if McKerr must be read accordingy. Though the Human Rights was not retrospective in effect, ‘the ambit of application of the Act should mirror that of the Convention. The object of the Act was to bring human rights home. This will only be achieved if claimants are able to bring in this jurisdiction claims that they would otherwise be permitted to bring before the Strasbourg Court. ‘
Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Kerr, Lord Dyson
[2011] UKSC 20, [2011] 3 All ER 607, [2011] 2 WLR 1279, UKSC 2010/0101
Bailii, Bailii Summary, SC, SC Summary
European Convention on Human Rights 2, Human Rights Act 1996
Northern Ireland
Citing:
At first instance – McCaughey and Quinn, Re Judicial Review QBNI 23-Sep-2009
The claimants sought leave to apply for Judicial Review of a decision of the Coroner in relation to the Inquests yet to be held into the deaths in 1990 of Martin McCaughey and Dessie Grew at the hands of members of the security forces. The claimants . .
Appeal from – McCaughey and Quinn, Re Judicial Review CANI 26-Mar-2010
The claimants challenged the mode of inquest sought to be carried out. They had been refused an undertaking that the inquest would comply with obligations under article 2.
Held: The appeal failed. McKerr remained binding on the court, even if . .
Cited – McCann and Others v The United Kingdom ECHR 6-Oct-1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Moldovan And Others v Romania (No. 1) ECHR 12-Jul-2005
In 1993 a pogrom had taken place in a Roma village, resulting in a number of deaths and widespread destruction of property. The State, in the form of the local police, was alleged to have been implicated. Romania acceded to the Convention on 20 June . .
Cited – Silih v Slovenia ECHR 9-Apr-2009
(Grand Chamber) Article 2 imposes, in certain circumstances, a freestanding obligation in relation to the investigation of a death which applied even where the death itself had occurred before the member state ratified the Convention.: ”The court . .
Cited – Jordan v Lord Chancellor and Another (Northern Ireland) HL 28-Mar-2007
In each case a death had occurred many years earlier where the deceased had apparently died at the hands of the armed forces. The relatives now challenged the range of verdicts which could be left to a coroner’s jury.
Lord Bingham said: ‘The . .
Cited – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Kaya v Turkey ECHR 19-Feb-1998
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (locus standi); No violation of Art. 2, not established that applicant . .
Cited – McDaid v United Kingdom ECHR 1996
(Commission) Decision on admissibility. Residents of Derry applied alleging inter alia that there had been a breach of the procedural obligation under article 2 to hold a full investigation into the ‘Bloody Sunday’ killings in 1972. They alleged . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Lyubov Efimenko v Ukraine ECHR 25-Nov-2010
The applicant was the mother of a young man who was robbed and killed in an attack in a bar. He died on 6 June 1993, four years and three months before the Convention came into force in relation to Ukraine. Investigations were suspended shortly . .
Cited – Varnava And Others v Turkey ECHR 10-Jan-2008
Where an individual had disappeared in circumstances raising a suspicion that he may have been killed, article 2 imposes a continuing duty to investigate the death. In this case the duty was said to have persisted for 34 years since the . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Brecknell v The United Kingdom ECHR 27-Nov-2007
Allegations had been made about police collusion with killings in Northern Ireland.
Held: Where there was credible information as to a possible perpetrator of an unlawful killing, there was a duty to investigate that evidence. Here the . .
Cited – Angelova And Iliev v Bulgaria ECHR 26-Jul-2007
The applicants were mother and brother of a Roma man who had been stabbed to death by a gang of teenagers. They did not suggest any direct involvement of the state, but complained of inadequacies in the police investigation.
Held: The absence . .
Cited – Balasoiu -c- Roumanie ECHR 20-Apr-2004
The applicant complained of being beaten up by police in 1993, before Romania had acceded to the Convention, but also of delay in the procedural investigation, which was still ongoing.
Held: The latter complaint was admissible. The court did . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Voroshilov v Russia ECHR 8-Dec-2005
The applicant alleged that he had been tortured by the police in 1997, the year before the Convention came into force in the Russian Federation. Criminal proceedings were commenced in 1997 but had not concluded. The applicant claimed that the state . .
See Also – McCaughey and Another, Re Application for Judicial Review QBNI 20-Jan-2004
Application by the fathers of Martin McCaughey and Desmond Grew, who were killed by soldiers on 9 October 1990, for Judicial Review of the decisions of the Chief Constable and the Coroner concerning the disclosure of documents for the purposes of . .
See Also – Police Service of Northern Ireland v McCaughey and Another CANI 14-Jan-2005
. .
Cited by:
Cited – Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs and Another SC 25-Nov-2015
The Court was asked whether the respondents should be required to hold a public inquiry into a controversial series of events in 1948, when a Scots Guards patrol was alleged to shot and killed 24 unarmed civilians in a village called Batang Kali, in . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .
Lists of cited by and citing cases may be incomplete.
Coroners, Human Rights
Updated: 16 January 2022; Ref: scu.439808
