House of Lords
|Session 2003 - 04
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In re McKerr (AP) (Respondent) (Northern Ireland)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
In re McKerr (AP) (Respondent) (Northern Ireland)
THURSDAY 11 MARCH 2004
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
In re McKerr (AP) (Respondent) (Northern Ireland)
 UKHL 12
LORD NICHOLLS OF BIRKENHEAD
1. This is a test case. It arises out of the absence of adequate public investigations into some fatal shootings in Northern Ireland over 20 years ago. This particular case relates to the death of Mr Gervaise McKerr. His son Jonathan seeks an order compelling the Secretary of State for Northern Ireland to hold an effective investigation into the circumstances of his father's death. He bases his claim primarily on the provisions of the Human Rights Act 1998 even though his father died many years before the Act came into force. He also advances a claim based on the common law.
2. Gervaise McKerr died on 11 November 1982. He was driving a Ford Escort car in East Lurgan with two passengers, Eugene Toman and Sean Burns. All three men were shot dead by members of a unit of the Royal Ulster Constabulary. Many of the facts surrounding the deaths are disputed. But it seems clear that the men were not armed and that over 100 rounds were fired at the car.
3. This was not an isolated incident. Two further fatal shooting incidents occurred soon afterwards, both involving the RUC in County Armagh. On 24 November 1982 Michael Tighe was shot dead and Martin McAuley seriously wounded. On 12 December 1982 Peter Grew and Roderick Carroll were shot and killed. These six fatal shootings occurred amid allegations that some members of the RUC were operating a shoot-to-kill policy against suspected terrorists.
4. Currently nine cases, including proceedings brought by the next of kin of Eugene Toman and Sean Burns, are pending in the courts of Northern Ireland awaiting the outcome of this appeal. In addition numerous requests have been made to the police and the Director of Public Prosecutions of Northern Ireland for new investigations into deaths involving the police or security forces many years ago. This surge of activity has been prompted by four judgments given by the European Court of Human Rights in May 2001 and the government's response to them.
5. The issues arising on this appeal before your Lordships are points of law. But I must first summarise briefly the protracted history of the steps taken by the United Kingdom authorities to investigate the circumstances of the death of Gervaise McKerr. A fuller record can be found in the judgment of the European Court of Human Rights in McKerr v United Kingdom (2002) 34 EHRR 20, paras 11-61. The history extends over twelve years, from November 1982 to September 1994, and falls essentially into three parts. First, criminal proceedings: one police officer was charged with the murder of Eugene Toman, a passenger in the car when the shooting occurred, and two other police officers were charged with aiding, abetting, counselling and procuring the officer to commit that offence. The trial took place between 29 May 1984 and 5 June 1984. At the end of the trial all three officers were acquitted on the direction of the judge.
6. Second, a police investigation was conducted, initially by John Stalker, then Deputy Chief Constable of the Greater Manchester Police Force, and thereafter by Colin Sampson, Chief Constable of the West Yorkshire Police. An interim report was followed by a lengthy final report presented in three sections, in October 1986, March 1987 and April 1987. On 25 January 1988 the Attorney General made a statement in Parliament in which he said that in the public interest no prosecutions would result from the Stalker/Sampson reports.
7. Third, at the conclusion of the criminal trial an inquest was opened by the Armagh coroner on 4 June 1984. It was subsequently adjourned to await completion of the Stalker/Sampson investigation and because of two sets of judicial review proceedings. Both sets of proceedings came to your Lordships' House: see McKerr v Armagh Coroner  1 WLR 649 and R v Attorney General for Northern Ireland, ex p Devine  1 WLR 262. The inquest resumed in May 1992 but was adjourned again later in the same month. On 31 January 1994 the inquest was closed and the jury discharged. The inquest was re-opened on 22 March 1994. The coroner said the public had a proper interest in knowing whether any further relevant evidence had come to light. On 5 May 1994 the Secretary of State issued a public interest immunity certificate stating that disclosure of the Stalker/Sampson report would cause serious damage to the public interest. On 8 September 1994 the coroner abandoned the re-opened inquest. He could no longer hope to achieve his purpose in re-opening the inquest.
The application to Strasbourg
8. Meanwhile on 7 March 1993 Gervaise McKerr's widow lodged an application with the European Court of Human Rights. After her death the application was continued by Mr Jonathan McKerr. The applicant invoked article 2 of the Convention. He alleged that his father had been unjustifiably killed and that there had been no effective investigation into the circumstances of his death. This application proceeded simultaneously with three others, two of which concerned deaths at the hands of the security forces and the third an allegation of police complicity in a murder by paramilitaries.
9. The court gave its judgment in all four cases on 4 May 2001. In the McKerr case the court made no finding on the lawfulness or proportionality of the use of lethal force which killed Gervaise McKerr. Nor did the court reach any conclusions on the circumstances, including Gervaise McKerr's own activities, which led up to the killing. But the court found that the various investigatory proceedings disclosed a number of shortcomings. These included: lack of independence of the investigation carried out by the RUC; lack of public scrutiny and information to the victim's family concerning the independent (Stalker/Sampson) investigation, including lack of reasons for the failure to prosecute any police officer for perverting or attempting to pervert the course of justice; the inquest procedure did not allow verdicts or findings which might play an effective role in securing prosecutions in respect of any criminal which might be disclosed; no advance disclosure of witness statements at the inquest; the PII certificate had the effect of preventing the inquest examining matters relevant to outstanding issues; the police officers who shot Gervaise McKerr could not be compelled to attend the inquest as witnesses; the inquest proceedings did not start promptly, and neither they nor the Stalker/Sampson investigation proceeded with reasonable expedition.
10. The court held unanimously that article 2 of the Convention had been violated by failure to comply with the obligation, implicit in article 2, to hold an effective official investigation when an individual has been killed by the use of force: see (2002) 34 EHRR 20, paras 157-161. The court awarded Mr Jonathan McKerr £10,000 as just satisfaction in respect of the frustration, distress and anxiety he must have suffered. A finding of violation was not sufficient compensation.
11. The government duly paid the sum awarded. In response to the judgment the United Kingdom also presented a package of proposals to the committee of ministers of the Council of Europe. Under article 46(2) of the Convention the committee of ministers has responsibility for supervising execution of the judgment of the court. This includes considering what are the practicable steps a state should be required to take in order to make good the violations found by the court: see Finucane v United Kingdom (2003) 37 EHRR 29, para 89. The government's package did not include any proposal to carry out a further investigation into the death of Gervaise McKerr. The government's stance is that, subject to any ruling of the courts, it does not propose to take any steps to hold a further investigation. The committee of ministers has not yet ruled on the adequacy of the government's proposals as an effective implementation of article 2.
The present proceedings
12. Mr Jonathan McKerr was not disposed to accept this as an adequate governmental response to the judgment of the European Court of Human Rights. The government ought to fulfil its obligation under article 2 of the Convention and remedy the deficiencies in the investigations so far undertaken into his father's death. Armed with the rights newly afforded him by the Human Rights Act, Mr McKerr sought the assistance of the court in compelling the government to conduct an effective investigation, in the form of a further coroner's inquest. On 30 January 2002 he commenced these judicial review proceedings. The relief claimed comprises (a) declarations that the Secretary of State's continuing failure to provide an article 2 compliant investigation is unlawful and in breach of section 6 of the Human Rights Act 1998 and article 2 of the Convention, (b) a mandatory order compelling the Secretary of State to conduct an article 2 compliant investigation and (c) damages.
13. On 26 July 2002 Campbell LJ dismissed the application. The Human Rights Act 1998 did not have retrospective effect. But the obligation to hold a proper investigation into a pre-Act death continued until either the obligation was fulfilled or a competent court vindicated the right in some other way. In the present case the continuing obligation to hold an investigation compliant with article 2 came to an end when the European Court of Human Rights made a finding of violation of article 2 and ordered payment of just satisfaction to Mr Jonathan McKerr.
14. Mr Jonathan McKerr appealed, and on 10 January 2003 the Court of Appeal allowed the appeal. Carswell LCJ delivered the judgment of himself and McCollum LJ and Coghlin J. The court agreed with Campbell LJ that the obligation to hold an investigation which complied with the requirements of article 2 was a continuing one. Counsel for the Secretary of State did not seek to uphold the judge's view that payment of compensation automatically brought the article 2 obligation to an end. Counsel contended that once just satisfaction had been awarded and paid, Mr Jonathan McKerr was no longer a 'victim' within section 7 of the Human Rights Act 1998 and accordingly he could not complain of any breach of the continuing obligation. The Court of Appeal rejected this argument. The court made a declaration that the government has failed to carry out an investigation complying with article 2. The court considered it inappropriate to grant any other relief because the committee of ministers had not yet ruled on the proposals made to them by the United Kingdom government. From that decision the Secretary of State appealed to your Lordships' House.
15. The primary contention advanced by the Attorney General on behalf of the Secretary of State was not advanced in the courts below. In short, the Attorney General submitted to your Lordships' House that section 6 of the Human Rights Act 1998 is not applicable to deaths occurring before the Act came into force on 2 October 2000. I shall consider this submission first.
16. It is now settled, as a general proposition, that the Human Rights Act is not retrospective. The Act itself treats section 22(4) as an exception. This general proposition, however, raises almost as many questions as it answers. Past events have continuing effects. For instance, agreements made before the Human Rights Act came into force will often generate obligations requiring performance after 2 October 2000. Some of the problems to which this gives rise were considered by your Lordships' House, in the context of sections 3 and 4 of the Act, in Wilson v First County Trust Ltd (No 2)  UKHL 40,  3 WLR 568.
17. In the present case the question of retrospectivity arises in the context of section 6 of the Act and article 2 of the Convention. It arises in this way. Section 6 of the Act creates a new cause of action by rendering certain conduct by public authorities unlawful. Section 7(1)(a) provides a remedy for this new cause of action. A person who claims a public authority is acting in a way made unlawful by section 6(1) may bring proceedings against the authority if he is a victim of the unlawful act. Thus, if the Secretary of State's failure to arrange for a further investigation into the death of Gervaise McKerr is unlawful within the meaning of section 6(1), these proceedings brought by his son fall squarely within section 7; if not, not.
18. So the key question is whether the government's failure to hold a further investigation in this case is conduct which is prohibited by section 6(1). Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a 'Convention right' as defined in the statute. An act includes a failure to act. The relevant Convention right is article 2. Article 2 of the Convention concerns the most fundamental right of all: the right to life. The sanctity of life is a principle which finds expression in all civilised societies throughout the world. Article 2 provides:
19. This article expressly imposes a positive obligation on the state to protect everyone's life. The state must take appropriate steps to safeguard the lives of those within its bounds. But the state's obligation does not stop there. The European Court of Human Rights has held that by implication article 2 also requires there should be some form of effective official investigation when individuals have been killed as a result of the use of force: see McCann v United Kingdom (1996) 21 EHRR 97 (the 'death on the Rock' case), and McKerr v United Kingdom (2002) 34 EHRR 20, para 111. The European Court of Human Rights has described this as a 'procedural' obligation imposed by article 2. The purpose of the investigation is to secure that domestic laws protecting the right to life are effectively implemented and, in cases involving state agencies, to ensure those responsible for deaths are made properly accountable: see Jordan v United Kingdom (2003) 37 EHRR 2, para 105. The requisites of an investigation, if it is to fulfil this procedural obligation inherent in article 2, were considered recently by your Lordships' House in R (Amin) v Secretary of State for the Home Department  UKHL 51,  3 WLR 1169.
20. Thus article 2 may be violated by an unlawful killing. The application of section 6(1) of the Human Rights Act to a case of an unlawful killing is straightforward. Section 6(1) applies if the act, namely, the killing, occurred after the Act came into force. Section 6(1) does not apply if the unlawful killing took place before 2 October 2000. So much is clear.
21. The position is not so clear where the violation comprises a failure to carry out a proper investigation into a violent death. Obviously there is no difficulty if the death in question occurred post-Act. The position is more difficult if the death occurred, say, shortly before the Act came into force and the necessary investigation would fall to be held in the ordinary course after the Act came into force. On which side of the retrospectivity line is a post-Act failure to investigate a pre-Act death?
22. In my view the answer lies in appreciating that the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. The obligation to hold an investigation does not exist in the absence of such a death. The obligation is consequential upon the death. If the death itself is not within the reach of section 6, because it occurred before the Act came into force, it would be surprising if section 6 applied to an obligation consequential upon the death. Rather, one would expect to find that, for section 6 to apply, the death which is the subject of investigation must itself be a death to which section 6 applies. The event giving rise to the article 2 obligation to investigate must have occurred post-Act.
23. I think this is the preferable interpretation of section 6 in the context of article 2. This interpretation has the effect, for the transitional purpose now under consideration, of treating all the obligations arising under article 2 as parts of a single whole. Parliament cannot be taken to have intended that the Act should apply differently to the primary obligation (to protect life) and a consequential obligation (to investigate a death). For this reason I consider these judicial review proceedings are misconceived so far as they are sought to be founded on the enabling power in section 7 of the Human Rights Act.
24. I refer briefly to the court decisions on this point. There have been several cases where everyone concerned appears to have assumed that section 6 of the Human Rights Act could apply to a failure to investigate a death which took place before the Act came into force. These include two decisions of your Lordships' House: R (Amin) v Secretary of State for the Home Department  3 WLR 1169 and R (Middleton) v Coroner for the Western District of Somerset  UKHL 10. In none of these cases, so it seems, was this point the subject of argument. So they do not assist.
25. In other cases, where the point has arisen for decision, differences in judicial view have emerged. In R (Wright) v Secretary of State for the Home Department  LLR (Med) 478, a case concerning a death in prison in 1996, Jackson J held the claimants were entitled to a remedy under the Act in respect of the Secretary of State's 'continuing breach of the procedural obligations under articles 2 and 3' of the Convention: see paragraph 67. In R (Khan) v Secretary of State for Health  EWHC 1414 (Admin) Silber J reached a contrary conclusion. He regarded the time of death as the governing factor. There the death occurred in October 1999. In Hurst v Coroner for the Northern District of London  EWHC 1721 (Admin), which concerned a death in May 2000, the Divisional Court disagreed with Silber J. The relevant time was when the decision was made in relation to the article 2 duty. At that time 'article 2 was part of English law': paragraph 20. This decision of the Divisional Court was followed by the Court of Appeal when the Khan case reached that court: see  EWCA Civ 1129. The Human Rights Act had been in force for nearly two years when, in July 2002, the Secretary of State first denied the parents of the dead child the relief they were seeking: paragraph 85.
26. Having had the advantage of much fuller arguments I respectfully consider that some of these courts, including the Divisional Court in the Hurst case and the Court of Appeal in the Khan case, fell into error by failing to keep clearly in mind the distinction between (1) rights arising under the Convention and (2) rights created by the Human Rights Act by reference to the Convention. These two sets of rights now exist side by side. But there are significant differences between them. The former existed before the enactment of the Human Rights Act 1998 and they continue to exist. They are not as such part of this country's law because the Convention does not form part of this country's law. That is still the position. These rights, arising under the Convention, are to be contrasted with rights created by the Human Rights Act. The latter came into existence for the first time on 2 October 2000. They are part of this country's law. The extent of these rights, created as they were by the Human Rights Act, depends upon the proper interpretation of that Act. It by no means follows that the continuing existence of a right arising under the Convention in respect of an act occurring before the Human Rights Act came into force will be mirrored by a corresponding right created by the Human Rights Act. Whether it finds reflection in this way in the Human Rights Act depends upon the proper interpretation of the Human Rights Act.
The 'victim' point
27. Had I reached the contrary conclusion I would not have accepted the Secretary of State's argument that Mr Jonathan McKerr had no standing to bring these proceedings because he ceased to be a 'victim' within the meaning of section 7 of the Human Rights Act once he had been paid the amount of money awarded by the European Court of Human Rights as just satisfaction. Mr McKerr was awarded this amount for his frustration, distress and anxiety over the years. All too obviously he is still not in the position intended to be achieved by fulfilment of the obligation to hold an effective investigation into his father's death. Crucial questions remain unanswered. As already noted, the European Court of Human Rights did not itself decide whether Gervaise McKerr had been killed by the use of unnecessary or disproportionate force. Nor did the court decide whether Gervaise McKerr had been the victim of a shoot-to-kill policy operated by some members of the Royal Ulster Constabulary.
An overriding common law right?
28. Before your Lordships' House Mr Treacy advanced a further basis for Mr McKerr's judicial review proceedings. He submitted that the right to an effective official investigation is as much a feature of the common law as it is of the European Convention. The rationale which underlies the procedural obligation under article 2 must also underpin the common law. He relied heavily upon an observation made by Lord Bingham of Cornhill in R (Amin) v Secretary of State for the Home Department  3 WLR 1169, 1185, para 30:
29. This submission, I note in passing, is not being used as a foundation for a challenge to the lawfulness of the conduct of the coroner inquiring into Gervaise McKerr's death. For many centuries coroners' inquests, with their inquisitorial process, have been a primary means employed in Northern Ireland as well as England and Wales for investigating violent or unnatural deaths or other deaths requiring investigation. The law provides, in the form of judicial review, a means whereby the lawfulness of coroners' decisions can be challenged. In an appropriate case a court may review a coroner's premature closure of an inquest.
30. That is not the route being followed in this case. In these proceedings Mr McKerr is not challenging any decision of the Armagh coroner. This is perhaps hardly surprising, given the years which have elapsed since the coroner closed his inquest into Gervaise McKerr's death. Nor is Mr McKerr asking the House to interpret the statutory provisions relating to coroners in a way which would make them compliant with the investigative requirements of article 2.
31. Instead, counsel propounded a separate overriding common law right corresponding to the procedural right implicit in article 2 of the Convention. He submitted that the Secretary of State is, or should be, subject to a common law obligation to arrange for an effective investigation into Gervaise McKerr's death. This obligation would be satisfied by holding a coroner's inquest which complies with the requirements of article 2. In the absence of such a right the common law would afford less protection to the right of life than the Convention. Under section 6 of the Human Rights Act the court, as a public authority, is obliged to develop the common law in a manner consistent with Convention rights and Strasbourg jurisprudence.
32. I have grave reservations about the appropriateness of the common law now fashioning a free standing positive obligation of this far reaching character. Such a development would be far removed from the normal way the common law proceeds. But I need not pursue this wider question. The submission fails for more straightforward, orthodox reasons. The effect of counsel's submission, if accepted, would be that the court would create an overriding common law obligation on the state, corresponding to article 2 of the Convention, in an area of the law for which Parliament has long legislated. The courts have always been slow to develop the common law by entering, or re-entering, a field regulated by legislation. Rightly so, because otherwise there would inevitably be the prospect of the common law shaping powers and duties and provisions inconsistent with those prescribed by Parliament. R v Lyons  UKHL 44,  1 AC 976 is a recent instance where the House rejected a submission having this effect.
33. The argument in the present case suffers from the same flaw. The suggested new common law right is sought as a means of supplementing, or overriding, the statutory provisions relating to the holding of coroners' inquests. That is not an appropriate role for the common law.