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

The procedural duty under article 2, as given domestic effect by the Human Rights Act 1998, does not ordinarily apply where the death occurred more than ten years before 2 October 2000. An extension to an absolute outer limit of 12 years is possible where the original investigation was seriously deficient or non-existent and the bulk of the investigative effort occurred, or ought to have occurred, after that date.

Fresh credible information may revive the investigative duty even when it concerns state responsibility for failing to protect life rather than the identification or punishment of the direct perpetrator. The scope of any revived duty is fact-sensitive and must remain reasonable and proportionate, having regard to elapsed time, prospects of achieving the investigation’s objectives, available resources and earlier investigations.

Sean Dalton was killed on 31 August 1988 when he unknowingly detonated an IRA bomb. A later investigation by the Police Ombudsman for Northern Ireland found that the police had failed to warn the community of a known threat and that the original murder investigation was flawed.

Mr Dalton’s family asked the Attorney General for Northern Ireland to direct a further inquest under section 14 of the Coroners Act (Northern Ireland) 1959. The Attorney General refused. Deeny J dismissed a judicial review challenge: [2017] NIQB 33. The Court of Appeal allowed the appeal and declared that no article 2-compliant investigation had occurred: [2020] NICA 26; [2021] NI 405.

The Supreme Court considered whether the death fell within the temporal scope of the Human Rights Act 1998, whether later information could revive the article 2 duty beyond perpetrator-focused cases, and the extent of any revived investigative obligation.

1. Appeal allowed. The death occurred more than 12 years before the Human Rights Act 1998 came into force on 2 October 2000. The Convention values test was not engaged. Applying In re Finucane [2019] UKSC 7 as rationalised in In re McQuillan [2021] UKSC 55, the claim therefore fell outside the temporal scope of the Act. The application for judicial review was dismissed.

2. The domestic genuine connection test ordinarily requires the death to have occurred no more than ten years before 2 October 2000. Between ten and 12 years, an extension is available only where the original investigation was seriously deficient or non-existent and the bulk of the investigative effort occurred, or ought to have occurred, after the critical date. Twelve years is the outer limit unless the Convention values test applies. A death within ten years must still satisfy the requirement concerning a major part of the investigation.

3. The court declined to depart from Finucane or McQuillan. The result did not require reconsideration of those authorities, neither was clearly wrong, and departure would damage legal certainty in a sensitive area involving continuing reliance and litigation. Lord Hodge, Lord Sales and Lady Rose considered that Janowiec v Russia (2013) 58 EHRR 30 imposed a strict ten-year limit, but accepted that the domestic rule settled in McQuillan should remain undisturbed.

4. The Brecknell revival principle is not confined to information capable of identifying or punishing the direct perpetrator. It may extend to credible new material indicating that state authorities failed to discharge their positive duty to protect life. The obligation revived by such material is proportionate and fact-sensitive rather than a complete reactivation of every requirement applicable immediately after a death.

5. Lord Leggatt, Lord Burrows and Dame Siobhan Keegan concluded, as an additional basis for allowing the appeal, that the Police Ombudsman’s extensive investigation, considered with the available civil proceedings, satisfied any revived duty. Lord Hodge, Lord Sales and Lady Rose regarded that conclusion as strongly arguable but made no final ruling because the temporal issue disposed of the case.

1. United Kingdom Supreme Court: Allowed the Attorney General’s appeal and dismissed the judicial review application: [2023] UKSC 36 .
2. Court of Appeal of Northern Ireland: Allowed Ms Dalton’s appeal and declared that no article 2-compliant investigation had occurred: [2020] NICA 26; [2021] NI 405.
3. High Court of Justice in Northern Ireland: Deeny J dismissed the substantive judicial review application: [2017] NIQB 33.