In the matter of an application by Rosaleen Dalton for Judicial Review (Northern Ireland)

The Supreme Court allowed the Attorney General for Northern Ireland’s appeal and held that there was no domestic procedural obligation under article 2 ECHR, via the Human Rights Act 1998, to order a further inquest into the death of Sean Dalton. The court applied the domestic analogue of the Strasbourg “genuine connection” test (as explained in Janowiec) and the domestic guidance developed in this court (Finucane and McQuillan): ordinarily the lapse between the death and the commencement of the Human Rights Act (2 October 2000) must be reasonably short and should not normally exceed ten years, with a narrowly defined outer limit of 12 years only where (i) the original investigation was seriously deficient or non-existent and (ii) the bulk of the investigative effort post-dates the commencement date. Mr Dalton’s death (31 August 1988) fell outside even that 12-year outer limit, and the Convention-values exception was not relied on. The court also held (consistent with Strasbourg authority in Brecknell) that the revival principle can apply where later information emerges, but the PONI investigation and available civil process meant no further investigatory step (such as a fresh inquest) was required in this case. The court emphasised legal certainty and declined to depart from Finucane and McQuillan.

This is an appeal from the Court of Appeal of Northern Ireland ([2020] NICA 26) against the Attorney General for Northern Ireland’s decision of 2 October 2014 declining to direct a fresh inquest into the 1988 death of Sean Dalton. The applicant sought judicial review arguing the decision breached the State’s procedural obligation under article 2 ECHR as given domestic effect by the Human Rights Act 1998. The factual background included a long-closed police investigation and an independent Police Ombudsman for Northern Ireland (PONI) report in 2013 which substantiated failings by the police (but rejected the allegation that police protected an informant) and recorded that the inquiry had been hampered by non-cooperation and missing documents.

The issues before the Supreme Court were (i) whether new material in 2005 revived an article 2 obligation to investigate (the Brecknell revival principle), (ii) whether any revived obligation was satisfied by the PONI investigation and by parallel civil proceedings, and (iii) whether the Human Rights Act provided a domestic remedy given the temporal gap between the death and the Act’s commencement (the genuine connection test and the Convention-values exception).

The court analysed Strasbourg authority (Šilih, Janowiec, Mocanu, Mladenović and others) and domestic authorities (McKerr, McCaughey, Finucane, McQuillan). It confirmed that Brecknell permits revival of the article 2 investigatory duty where later plausible/credible material emerges, and that revival is not confined to evidence solely directed at identification and prosecution of perpetrators but extends to failures of state authorities to protect life. On the temporal issue the court applied the domestic analogue of Janowiec: the period between the death and the HRA commencement must be reasonably short (normally not exceeding ten years) and a major part of the investigation must have taken place or ought to have taken place after the commencement date; McQuillan authoritatively recognised a narrowly defined two-year extension (to 12 years) only where two compelling circumstances are present (serious defect or absence of the original investigation and the bulk of investigative effort occurring after commencement). Because Mr Dalton’s death occurred more than 12 years before the HRA came into force and the Convention-values test was not engaged, the court held there was no domestic article 2 procedural obligation to order a fresh inquest. The court also held that, applying Brecknell, the PONI inquiry and ongoing civil proceedings meant no further article 2-compliant step was reasonably required in the circumstances.

Relief sought: direction that the Attorney General order a fresh inquest. Issues framed by the court: (i) scope and temporal application of the article 2 procedural obligation under the HRA; (ii) scope of the Brecknell revival principle; and (iii) whether any revived obligation remained unsatisfied. Reasoning: the court applied Strasbourg jurisprudence by analogy, endorsed the McQuillan formulation as providing legal certainty, found the claim outside the domestic temporal ambit of article 2, and concluded that the AGNI’s decision was lawful.

Appeal allowed. The Supreme Court held that the Attorney General’s decision not to direct a further inquest was lawful because the article 2 procedural obligation as given domestic effect by the Human Rights Act 1998 did not apply to a death that occurred more than 12 years before the Act’s commencement (2 October 2000) unless the Convention-values test applied; no such exception arose and the PONI inquiry together with civil process meant no further investigatory step was required.

High Court (Northern Ireland) Deeny J: judicial review dismissed ([2017] NIQB 33). Court of Appeal (Northern Ireland): appeal allowed and declaration that there had not been an Article 2-compliant investigation ([2020] NICA 26; final order 27 May 2020). Permission to appeal to the Supreme Court granted; Supreme Court ([2023] UKSC 36) allowed the Attorney General’s appeal.