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This is an appeal against a refusal by the Northern Ireland High Court and Court of Appeal ([2010] NICA 13) to grant a declaration that inquests into the killings of the Appellants’ next of kin by British security forces were required to comply with the requirements of Article 2 ECHR.

The legal background to the case is the decision of the House of Lords in Re McKerr ([2004] 1 WLR 807) that the substantive and procedural aspects of Article 2 were not severable and that the provision applied, by virtue of the Human Rights Act 1998, only to deaths occurring after 2 October 2000. McKerr, like McCaughey, involved the killing of suspected Irish terrorists in circumstances giving rise to allegations of a “shoot to kill” policy by security personnel in Northern Ireland. Gervaise McKerr was shot dead in 1982, Martin McCaughey and Desmond Grew (whose next of kin are the Appellants in the instant case) in 1990. These and associated killings have resulted in numerous applications to the European Court of Human Rights which has made repeated findings as to the inadequacy of domestic investigations (McKerr v UK (2002) 34 EHRR 553; Kelly v UK [2001] Inquest Law Review 125; Jordan v UK (2003) 37 EHRR 2; Shanagan v UK [2001] Inquest Law Review 149 and McShane (2002) 35 EHRR 23); a report by Amnesty which expressed concern that “some of the killings by the security forces may have resulted from a deliberate policy at some official level to eliminate, or permit elimination of, rather than to arrest individuals whom they identified as members of armed opposition groups” (Amnesty International, Northern Ireland: Killings by the Security Forces and ‘Supergrass’ Trials (1988), 59); the highly publicised Stalker affair; and the longest running inquests in history (opened into the deaths of McKerr and others in August 1984 and still ongoing having been adjourned and resumed on numerous occasions, for the most part because of police refusals to provide evidence to the Coroner).

In Silih v Slovenia ([2009] ECHR 571) the Grand Chamber ruled 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 question for the Supreme Court is whether, in the light of this decision, the decision of the House of Lords in Re McKerr should be overruled.

The applicants in the McCaughey case argued before Northern Ireland’s High Court and Court of Appeal that McKerr was no longer good law, and asked the High Court to allow a leapfrog appeal to the Supreme Court. This application was refused and Northern Ireland’s Court of Appeal, ruling that it was bound by the decision in McKerr, distinguished Silih on the grounds that it concerned a death which had occurred shortly before ratification by Slovenia of the ECHR whereas the instant case concerned investigations into “death[s] years prior to the passing of the 1998 Act”. The Court cited the dicta of Lord Hoffmann in Mc Kerr [67] in which he stated that, unless a line was drawn,

“there can in principle be no limit to the time one could have to go back into history and carry out investigations . . . Either the Act applies to deaths before 2 October 2000 or it does not. If it does, there is no reason why the date of accession to the Convention should matter. It would in principle be necessary to investigate the deaths by State action of the Princes in the Tower”.

Northern Ireland’s Court of Appeal noted (per Deeny J, [15]) that it had been

“given a list of some 20 inquests yet to be heard into deaths in circumstances involving members of the security forces, which pre-date the coming into effect of the 1998 Act. If Miss Quinlivan [for the Appellants] is right, it is likely that broader and more intensive investigations of the circumstances surrounding those deaths might be called for. The events in question range from 1998 back to 1982, some 28 years ago. Such broader investigations of increasingly historical events may have serious implications, not least in respect of time and the availability of witnesses and resources. These seem like policy issues which a court would address with great caution, but which necessarily arise here if the courts changed their interpretation of the 1998 Human Rights Act, from the view taken in McKerr et alia.”

The Court granted leave to apply for judicial review on the basis of its own “duty under Section 3 of the Act to read and give effect so far as possible to any relevant legislation in a manner compatible with Convention rights”, the significance under section 2 HRA of ECtHR jurisprudence and and the fact that “the Supreme Court may choose to extend Silih to our domestic law”. It ruled against the Appellants on the substantive claim, however, on the grounds that Silih was distinguishable.

The hearing in McCaughey & Quinn is listed to take place over two days on 2 and 3 February 2011, before a seven-judge Supreme Court. It is to be hoped that the Court will overrule McKerr and accept the applicability of the procedural aspects of Article 2 to deaths long pre-dating the HRA. Whatever the theoretical objections of Lord Hoffmann in McKerr, the real impact of such a ruling would be to shine a light in some of the dark corners of alleged British human rights abuses in Northern Ireland, the proper investigation of which is a necessary condition of that region’s transition towards functioning democracy. The fact that some 20 inquests into deaths which took place as many as 29 years ago remain incomplete, many of them as a result of refusals of disclosure on the part of the police, is a reason to apply, rather than to withhold, the procedural obligations imposed by Article 2.