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In Re McCaughey & Anor [2011] UKSC 20 the Supreme Court, Lord Rodger dissenting, accepted the applicability of the Human Rights Act 1998 to the operation of inquests into pre-Human Rights Act killings. The Appellants’ next of kin had been shot by British security forces, in circumstances which had given rise to long-running allegations of a “shoot to kill” policy applicable to those suspected of involvement in the IRA or the INLA in Northern Ireland. Martin McCaughey and Desmond Grew (whose next of kin are the Appellants in the instant case) were killed in 1990. Their killings and various others (in particular, that of Gervaise McKerr in 1982) resulted in numerous applications to the European Court of Human Rights which has made repeated findings as to the inadequacy of domestic investigations (see my earlier case preview of 1 February 2011 for detail).

The question for the Supreme Court in Re McCaughey was whether, as a result of the decision of the European Court of Human Rights in Silih v Slovenia [2009] ECHR 571, the Supreme Court ought to overrule the decision of the House of Lords in McKerr [2004] 1 WLR 807 that Article 2 applied, by virtue of the Human Rights Act 1998, only to deaths occurring after 2 October 2000. The practical significance for the relatives of the deceased concerned whether the inquest could enquire as to “in what broad circumstances”, rather than “by what means”, the men had been killed.

The Grand Chamber had ruled in Silih that the procedural obligations imposed by Article 2 were binding on Slovenia in respect of a contested death which had occurred prior to that State’s ratification of the Convention, though the investigation into the death took place largely post ratification:

“The procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty [which] … can be considered to be a detachable obligation arising out of Article 2 capable of binding the state even when the death took place before the critical date”.

The applicability of the Convention to the McCaughey deaths was not in dispute and, as Lord Phillips recognised ([56]), the decision in Silah was not conclusive  as to the interpretation of the 1998 Act. But “[i]n considering that issue … it is right to bear in mind that a similar issue arises in respect of the article 2 procedural obligation that the Strasbourg Court has held can revive on the discovery of fresh facts and which persists in respect of a suspicious disappearance”.

Lord Phillips, who delivered the leading speech, was at pains to stress ([47]) that Silah “did not decide that there is a continuing obligation to hold a procedural investigation that persists from the time of the death until the obligation has been satisfied”, although in some cases, such as where an individual had disappeared and in circumstances which raised a suspicion of killing, such an obligation had subsequently been imposed by the Court in Varnava v Turkey (Application Nos 16064/90-16066/90, 16068/90- 16073/90) (unreported) 18 September 2009). In any event, where, as here ([50]), “‘a significant proportion of the procedural steps’” required by that provision “(assuming that it applies) in fact take place after the Convention has come into force”, the procedural aspects of Article 2 applied. The obligation for such steps to be Article 2 compliant, Lord Phillips accepted, “appears to be a free standing obligation” on which there was “no temporal restriction … other than that the procedural steps take place after the Convention has come into force” ([50]). In the instant case ([51]):

The United Kingdom is not under a continuing obligation under article 2 to carry out an investigation into the deaths over 20 years ago of Martin McCaughey or Dessie Grew. But an inquest is going to be held into those deaths. As a matter of international obligation it is now apparent that the United Kingdom has come under a free standing obligation under article 2 to ensure that the inquest complies with the procedural requirements of that article, at least in so far as this is possible under domestic law.

Lord Phillips reiterated, as [58], that “the HRA does not have retroactive effect”,

also that its interpretation ought to mirror that of the Convention. In McKerr the former principle had triumphed because of “the spectre that claims could be made under the HRA for breach of a continuing duty to hold an inquest in respect of any death that had occurred since 1951 when this country ratified the Convention, founded on the possibility that the death had involved a breach of the substantive obligation imposed by article 2” ([60]). In Lord Phillip’s view, the

most significant aspect of Silah was that it clarified that ([61]): “it makes it quite clear that the article 2 procedural obligation is not an obligation that continues indefinitely”, this with the effect that the:

61… The spectre that the House of Lords confronted in McKerr of is shown to be a chimera. Just because there has been an historic failure to comply with the procedural obligation imposed by article 2 it does not follow that there is an obligation to satisfy that obligation now. Insofar as article 2 imposes any obligation, this is a new, free standing obligation that arises by reason of current events…

62. Is the presumed intention of Parliament when enacting the HRA that there should be no domestic requirement to comply with this international obligation? This is a very different question to that considered by the House of Lords in McKerr, and so far as I am concerned it produces a different answer. The mirror principle should prevail. It would not be satisfactory for the Coroner to conduct an inquest that did not satisfy the requirements of article 2, leaving open the possibility of the appellants making a claim against the United Kingdom before the Strasbourg Court…”

Lord Hope agreed that the de-coupling of the substantive from the procedural aspects of Article 2 by the Court in Silih provided the basis for a departure from McKerr and that, while no obligation arose under the 1998 Act to investigate deaths which occurred prior to 1 October 2000, and investigation which the state chose to undertake must be Article 2 compliant ([76], [77]). Lady Hale and Lords Kerr, Dyson and Brown also agreed that the inquest into the McCaughey and Grew deaths was required by the HRA, interpreted in the light of Silih, to be Article 2 compliant, the latter pointing out ([102]) that “[t]here are, we were told, 16 existing “legacy inquests” (involving 26 deaths) currently outstanding on the coroner’s books, a further six incidents (involving eight pre-2000 deaths) referred by the Attorney General to the Coroner for inquests … and a further 7 deaths (between August 1994 and January 2000) not yet the subject of inquests” and doubting whether much difference remained between Article 2 compliant inquests and others (see discussion in R (Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1). Lord Rodger alone dissented.

The decision in McCaughey will not impose a Human Rights Act obligation on the state to investigate pre-commencement deaths, as had been argued in McKerr. It may, however, accelerate the glacial progress, despite the best efforts of Coroner

John Leckey, of the inquests into the deaths of Martin McGaughey, Dessie Grew and others shot dead by British troops in suspicious circumstances, and help get to the bottom of the “shoot to kill” saga.