In re McKerr

The House of Lords held that the Human Rights Act 1998 does not have retrospective effect so as to create a domestic section 6 claim to compel an article 2 compliant investigation into a death which occurred before the Act came into force on 2 October 2000. The procedural obligation to hold an effective investigation under article 2 ECHR is a right created in domestic law by the Human Rights Act and therefore applies only to deaths that fall within the Act's temporal scope. The court also rejected the submission that the common law should be developed to impose an overriding positive duty on the state to hold such investigations in respect of pre-Act deaths, because that would intrude into a field long regulated by statute and Parliament's intention not to give retrospective effect to the Act.

This was an appeal from the Court of Appeal of Northern Ireland concerning the son of Gervaise McKerr who sought judicial review to compel the Secretary of State for Northern Ireland to hold an article 2 compliant investigation into his father's death on 11 November 1982. The European Court of Human Rights had earlier found a violation of article 2 because the investigative procedures were defective and awarded just satisfaction. The applicant sought declarations that the Secretary of State's continuing failure to secure an article 2 compliant investigation was unlawful under section 6 of the Human Rights Act 1998, a mandatory order to compel such an investigation, and damages.

The key issues framed by the House were:

• Whether section 6 of the Human Rights Act 1998 applied retrospectively so as to render unlawful post-2000 conduct consisting of a failure to investigate a death that occurred in 1982 (the retrospectivity issue); and
• Whether the common law independently imposes a positive obligation on the state to arrange an effective official investigation into such a death irrespective of the Human Rights Act (the common law issue).

The court reasoned that the Human Rights Act creates domestic rights and remedies as of 2 October 2000 and is not retrospective (section 22(4) and relevant authorities). The procedural obligation implicit in article 2 to investigate a death is consequential upon the death and, where relied upon under the Act, presupposes that the substantive article 2 right lies within the Act's temporal operation. Accordingly the Act did not give rise to a section 6 cause of action in respect of McKerr's 1982 death. The court also declined to develop the common law to impose a freestanding, overriding investigatory duty in respect of pre-Act deaths, observing that doing so would conflict with statutory schemes and Parliament's expressed choices.

The House therefore allowed the appeal and dismissed the judicial review application.

Appeal allowed. The House held that section 6 of the Human Rights Act 1998 does not apply retrospectively to create a domestic cause of action to compel an article 2 compliant investigation into a death which occurred before the Act came into force; moreover the common law will not be developed to impose such a freestanding positive investigative obligation in respect of pre-Act deaths.

First instance: Judicial review dismissed by Campbell LJ (26 July 2002). Court of Appeal (Northern Ireland) allowed the appeal (judgment reported as [2003] NICA 1; decision delivered 10 January 2003). Appeal to the House of Lords allowed: [2004] UKHL 12.