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

The procedural obligation under article 2 to investigate a death caused by force is consequential upon the death. Section 6 of the Human Rights Act 1998 therefore creates no domestic obligation to investigate a death occurring before the Act came into force.

A continuing international obligation under the Convention does not become a domestic right merely because it persists after commencement of the Act. Nor may the common law create an overriding investigative obligation equivalent to article 2 in a field regulated by legislation, particularly where that would contradict Parliament’s decision against retrospectivity.

In 1982 Gervaise McKerr and two passengers were shot dead by Royal Ulster Constabulary officers. Criminal proceedings, police investigations and a coroner’s inquest failed to resolve concerns surrounding the deaths. The European Court of Human Rights subsequently held that the United Kingdom had violated the procedural obligation under article 2 by failing to conduct an effective investigation.

His son commenced judicial review proceedings seeking a declaration, a mandatory order and damages under sections 6 and 7 of the Human Rights Act 1998. Campbell LJ dismissed the application. The Court of Appeal of Northern Ireland allowed the son’s appeal and declared that the Government had failed to conduct an article 2-compliant investigation: [2003] NICA 1.

The Secretary of State appealed. The central issues were whether section 6 applied to a post-commencement refusal to investigate a pre-commencement death and whether the common law imposed an equivalent investigative duty.

1. The appeal was allowed unanimously and the judicial review application dismissed. Lord Nicholls delivered the principal speech. Lord Steyn, Lord Hoffmann, Lord Rodger and Lord Brown each agreed that no enforceable domestic duty to conduct a further investigation had arisen.

2. Per Lord Nicholls, Lord Hoffmann, Lord Rodger and Lord Brown, the procedural obligation implicit in article 2 is triggered by, consequential upon and necessarily linked to the death. Section 6 of the Human Rights Act 1998 therefore applies to that obligation only where the relevant death occurred after 2 October 2000. Parliament cannot be taken to have intended different temporal treatment for the primary right to life and the ancillary obligation to investigate.

3. Per Lord Nicholls, Lord Hoffmann and Lord Rodger, rights arising under the Convention in international law must be distinguished from the domestic rights created by the Human Rights Act 1998. The Act did not convert existing international obligations into domestic ones. A continuing international obligation concerning a pre-Act death consequently supplied no domestic cause of action under sections 6 and 7.

4. Per Lord Nicholls, Lord Steyn, Lord Hoffmann and Lord Brown, the common law did not impose a free-standing obligation equivalent to article 2. The proposed obligation would enter a field long regulated by legislation concerning coroners and inquests, override established statutory rules, and contradict Parliament’s decision not to make the Act retrospective. Common law development must proceed in harmony with legislation.

5. Lord Nicholls and Lord Steyn would have rejected the Secretary of State’s alternative argument that payment of the Strasbourg award caused the son to cease to be a victim for section 7 purposes. The compensation addressed frustration, distress and anxiety; it did not fulfil the outstanding purpose of an effective investigation.

6. Lord Steyn was not persuaded, in the absence of evidence, that an effective investigation of sensible scope had become impossible. Lord Brown considered, however, that any further inquiry could provide only partial redress and could not now satisfy every requirement of a prompt article 2 investigation. These observations were unnecessary to the disposition.

1. House of Lords: The Secretary of State’s appeal was allowed unanimously. The Court of Appeal’s declaration was set aside and the judicial review proceedings were dismissed: [2004] UKHL 12.

2. Court of Appeal of Northern Ireland: The respondent’s appeal was allowed. The court declared that the Government had failed to conduct an investigation complying with article 2 but granted no further relief: [2003] NICA 1.

3. High Court of Northern Ireland: Campbell LJ dismissed the judicial review application. He held that the investigative obligation had ended when the European Court of Human Rights found a violation and awarded just satisfaction.