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

The Convention-compatible interpretative duty in the Human Rights Act 1998, section 3, operates only where the Convention right is enforceable in domestic law. The article 2 procedural duty to investigate a death is linked to the death and does not apply domestically to a death before 2 October 2000.

Accordingly, the wider meaning given to “how” for an article 2-compliant inquest does not govern every inquest. Outside its Convention context, ordinary coronial law retains the narrower inquiry into by what means the deceased died. An unincorporated treaty obligation may inform a statutory discretion, but does not ordinarily bind the decision-maker to consider or give effect to it. The retrospective defence in section 22(4) cannot be used to compel the resumption of an inquest.

The respondent’s son was killed on 25 May 2000, before the Human Rights Act 1998 came into force. The inquest was adjourned during criminal proceedings. After the killer’s conviction for manslaughter, the coroner refused under section 16(3) of the Coroners Act 1988 to resume it.

The Divisional Court directed the coroner to resume the inquest: [2003] EWHC 1721 (Admin); [2004] UKHRR 139. The Court of Appeal dismissed the Commissioner’s appeal: [2005] EWCA Civ 890; [2005] 1 WLR 3892. It held that section 3 required a construction compatible with the United Kingdom’s international article 2 obligations and that those obligations had to be considered when the coroner exercised his discretion.

The central questions were whether article 2 and section 3 required a wider inquest into a pre-commencement death, whether that wider construction governed all inquests, whether the unincorporated Convention obligation was a mandatory consideration, and whether section 22(4) permitted retrospective reliance on article 2.

1. Disposition. The appeal was allowed by a majority of three to two. Lord Brown delivered the leading speech. Lord Bingham agreed with it in full, and Lord Rodger agreed with Lord Brown’s conclusions on the issues argued. The coroner’s decision of 19 November 2002 was held lawful.
2. Temporal application of article 2. Per Lord Brown, the Convention rights mentioned in sections 3 and 6 of the Human Rights Act 1998 have the same domestic meaning. The article 2 investigative duty is ancillary to the right to life and is linked to the death. Following In re McKerr [2004] UKHL 12, it does not apply domestically to a death before 2 October 2000. Section 3 therefore could not require a Convention-compatible inquest in this case.
3. Scope of a coronial verdict. The construction adopted in R (Middleton) v West Somerset Coroner [2004] 2 AC 182 applies only where the domestic article 2 obligation is engaged and an inquest must discharge it. It did not replace the ordinary construction established by R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1. Outside that Convention context, “how” in section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36 of the Coroners Rules 1984 means “by what means”, rather than “in what broad circumstances”. A statutory provision may consequently receive a Convention-compatible meaning in cases where Convention rights are engaged and its ordinary meaning elsewhere.
4. Unincorporated international obligations. Per Lord Brown, an unincorporated treaty obligation may lawfully be considered in the exercise of a discretion, but the decision-maker is not generally bound to consider or implement it. A consideration is mandatory only where the statute expressly or impliedly requires it or it is so obviously material that Parliament must have intended its direct consideration. Article 2 was not such a mandatory consideration in the circumstances of this case.
5. Retrospective defence. Section 22(4) permits Convention rights to be used retrospectively as a defence in proceedings brought or instigated by a public authority. An inquest is not brought against its participants, and the respondent was seeking proceedings against the coroner to compel resumption. Sections 7(1)(b) and 22(4) therefore did not assist her.
6. Dissent. Baroness Hale and Lord Mance would have dismissed the appeal or remitted the resumption decision. They considered that, even under ordinary coronial law, the investigation could extend beyond the permissible verdict and examine the conduct of the police and housing authority. Lord Mance also considered the United Kingdom’s article 2 obligations a relevant guide to the discretion.

1. House of Lords: By a majority of three to two, allowed the Commissioner’s appeal and held the coroner’s refusal to resume the inquest lawful: [2007] UKHL 13.
2. Court of Appeal: Dismissed the Commissioner’s appeal and upheld the order requiring resumption of the inquest: [2005] EWCA Civ 890; [2005] 1 WLR 3892.
3. Divisional Court of the High Court: Allowed the respondent’s judicial review challenge and directed the coroner to resume the inquest: [2003] EWHC 1721 (Admin); [2004] UKHRR 139.