In the matter of an application by Brigid McCaughey and another for Judicial Review (Northern Ireland)

Where an inquest into a pre-commencement death is pending and is to be held after the Human Rights Act 1998 came into force, its future conduct must comply with article 2 of the Convention if the autonomous procedural duty is engaged. This does not retrospectively make the death, or historic investigative failures, unlawful in domestic law.

The court gave domestic effect to the Strasbourg ruling in Šilih v Slovenia (2009) 49 EHRR 996. Article 2's investigative obligation is detachable from the substantive duty to protect life. An article 2 inquest must address the broad circumstances of the death, rather than only the means by which it occurred.

Martin McCaughey and Dessie Grew were shot by members of the British Army in 1990. Their next of kin sought a declaration that the still-pending inquests had to meet the procedural requirements of article 2 of the Convention.

The Coroner proposed to investigate the surveillance operation, including its purpose, planning, conduct, knowledge and use of force. The dispute concerned whether the inquests nevertheless had to be article 2 compliant, given that the deaths preceded the commencement of the Human Rights Act 1998 on 2 October 2000.

Weatherup J refused relief, holding himself bound by In re McKerr [2004] UKHL 12. The Northern Ireland Court of Appeal dismissed the substantive claim but granted permission to appeal: [2010] NICA 13. The central issue was the domestic effect of the Grand Chamber decision in Šilih v Slovenia (2009) 49 EHRR 996.

1. Appeals allowed by a six-to-one majority. Lord Rodger dissented. The court declared that the Coroner must hold an inquiry into each death which complies with the state's procedural obligation under article 2.

2. The majority held that Šilih v Slovenia (2009) 49 EHRR 996 had materially changed the premise on which In re McKerr [2004] UKHL 12 had been decided. Article 2's procedural obligation is a separate and autonomous duty. It may regulate post-commencement procedural acts even though the death occurred before the Human Rights Act 1998 came into force.

3. The Act remains non-retrospective. It creates no domestic claim that the 1990 killings themselves, or pre-commencement failures to investigate them, breached article 2. But the intended inquests were current proceedings. Requiring their future conduct to satisfy article 2 did not give retrospective effect to the Act.

4. Lord Phillips treated the decision to hold the inquests as giving rise to a new, free-standing procedural obligation. Lord Hope stressed the narrower common ground: there was no domestic duty to initiate an inquiry merely because of the historic deaths, but an inquiry which the state was now to conduct had to be article 2 compliant. Lady Hale, Lord Brown, Lord Kerr and Lord Dyson reached the same result. Lords Kerr and Dyson also regarded the pre-existing investigation and the substantial procedural steps remaining after commencement as a sufficient connection.

5. The content of the required inquiry followed R (Middleton) v West Somerset Coroner [2004] UKHL 10. Its verdict on how the deceased died must encompass the broad circumstances of the deaths, not merely the means by which they occurred. This did not require the Coroner or jury to determine criminal or civil liability.

• United Kingdom Supreme Court: Appeals allowed by a six-to-one majority. The Coroner was directed to conduct article 2-compliant inquiries: [2011] UKSC 20 .
• Court of Appeal in Northern Ireland: It held that In re McKerr remained binding, denied substantive relief, but granted permission to appeal: [2010] NICA 13.
• High Court of Justice in Northern Ireland: Weatherup J refused the requested declaration because he was bound by In re McKerr: [2009] NIQB 77.