In re McCaughey

The Supreme Court considered whether the procedural obligation under Article 2 of the European Convention on Human Rights (the obligation to hold an effective investigation into certain deaths) is a free-standing, detachable duty such that the Human Rights Act 1998 applies to inquests held after 2 October 2000 even though the deaths occurred before that date. The Court analysed the Grand Chamber decision in Šilih v Slovenia and the earlier House of Lords decision in In re McKerr, focusing on the temporal scope of Convention-derived investigative duties and on the interaction between the non-retroactivity principle and the mirror principle (that domestic law should, where possible, reflect Strasbourg law).

The majority concluded that Šilih established that the Article 2 procedural obligation can be a separate and autonomous duty which may be engaged in respect of procedural acts occurring after the critical date, provided there is a sufficient connection between the death and that date (for example where a significant proportion of investigative steps occur or ought to occur after the critical date). Applying that analysis to the present appeals, the Court held that the Human Rights Act does apply to inquests held after 2 October 2000 where the Article 2 procedural obligation continues or is otherwise engaged after that date, and therefore that coronial inquiries into the appellants’ cases should comply with Article 2 standards so far as domestic law permits.

Background and issues

• Applicants: next of kin of Martin McCaughey and Dessie Grew, killed by soldiers on 9 October 1990.
• Relief sought: a declaration that the Coroner was obliged to hold inquests complying with the procedural requirements of Article 2 ECHR.
• Key legal question: whether the Article 2 investigative duty, as elaborated by the Grand Chamber in Šilih v Slovenia, is a detachable procedural obligation that the Human Rights Act 1998 brings within domestic enforceability for inquests held after 2 October 2000 even though the deaths pre‑date the Act.

Procedural posture

• Permission for judicial review initially refused by Weatherup J ([2009] NIQB 77). The Court of Appeal (Northern Ireland) [2010] NICA 13 granted leave to apply for judicial review to this Court and gave permission to appeal.

Court’s analysis

• The Court reviewed Strasbourg jurisprudence on the Article 2 procedural obligation (notably McCann, Moldovan, Brecknell and Šilih) and the House of Lords’ decision in In re McKerr, which had held that the Human Rights Act did not apply to investigations triggered by deaths that occurred before the Act’s commencement.
• The Court identified two competing interpretive principles: (i) the non-retroactivity principle (HRA should not have retrospective effect), and (ii) the mirror principle (domestic law should, insofar as possible, reflect Convention law as interpreted by Strasbourg).
• The majority concluded that Šilih recognises the Article 2 procedural obligation as in some circumstances detachable and capable of being engaged by procedural acts occurring after the relevant date; where there is a sufficient connection (for example where a significant proportion of investigative steps take place or ought to take place post‑commencement) domestic law should give effect to that obligation.
• The Court held that this approach does not improperly make the HRA retrospective: the obligation asserted is a present procedural duty arising after the Act came into force, not a back‑dated substantive violation converted into domestic law.

Disposition and practical effect

• The appeals were allowed. The Supreme Court directed that the Coroner should hold inquiries that comply with the State’s procedural obligation under Article 2 so far as this is possible under domestic law. The ruling narrows the distinction between conventional (Jamieson) inquests and Article 2 (Middleton) inquests where the Article 2 procedural duty is engaged post‑commencement.

The appeals were allowed. The Court held that Šilih v Slovenia established that the Article 2 procedural obligation can be a separate, detachable and autonomous duty capable of being engaged by procedural acts occurring after the Human Rights Act 1998 came into force; where there is a sufficient connection between the death and the Act (for example because a significant part of the investigative steps falls to be taken after commencement), the HRA applies and an inquest held after 2 October 2000 must comply with Article 2 procedural standards so far as domestic law permits.

Application for permission to apply for judicial review refused by Weatherup J ([2009] NIQB 77). Court of Appeal (Northern Ireland) allowed permission to apply for judicial review and granted leave to appeal to the Supreme Court ([2010] NICA 13). Appeal to the Supreme Court ([2011] UKSC 20).