IN THE SUPREME COURT
ON APPEAL FROM HER MAJESTY’S COURT OF APPEAL
IN NORTHERN IRELAND
IN THE MATTER OF AN APPLICATION BY
BRIGID McCAUGHEY AND LETITIA QUINN
FOR JUDICIAL REVIEW
HER MAJESTY’S SENIOR CORONER FOR NORTHERN IRELAND
HER MAJESTY’S CORONER
CHIEF CONSTABLE FOR THE POLICE SERVICE NORTHERN IRELAND
STATEMENT OF FACTS AND ISSUES
Appeal from decision of Court of Appeal dismissing application for judicial review of decisions of Senior Coroner and Coroner; Grand Chamber in Silih v Slovenia ruled that Article 2 procedural obligation detachable from substantive obligation; impact of decision in Silih where death pre-dates the coming into operation of the Human Rights Act but the Inquest post-dates the coming into operation of the Act; whether Appellants entitled to rely on their Article 2 procedural rights in Inquest.
Decision: Leave for judicial review granted, Application dismissed.
Time occupied in the Courts Below:
High Court – 1 day
Court of Appeal – 2 days
- The Appellants are the next of kin of the deceased, Martin McCaughey and Dessie Grew, who were shot and killed by members of the British Army on the 9th October 1990. The shooting of the Deceased was one of a series of shootings which gave rise to an allegation of a shoot-to-kill policy on the part of the security forces in Northern Ireland.
- Despite the significant time that has passed since the death, no Inquest has yet been held. The deceased were shot and killed in 1990 but the RUC did not provide papers to the then Coroner until 1994. Those papers were incomplete since they omitted statements from the soldiers who committed the killings. These further statements were not provided to the Coroner until April 2002. In June 2002 the solicitors representing the next of kin of the deceased wrote to the Coroner enquiring as to when the Inquest was to be held and raising issues in relation to pre-inquest disclosure. A Preliminary Hearing was held on the 31st January 2003. The Police Service Northern Ireland refused to provide the Coroner with disclosure of all documents held by them concerning the death this decision was challenged by the next of kin. No further hearings were held pending the outcome of that challenge. Those proceedings took four years and concluded with the House of Lords judgment in Re Jordan’s v Lord Chancellor & Ano’r in March 2007.
- Subsequent to the decision of the House of Lords, the Appellants’ solicitors wrote on a number of occasions to both, Her Majesty’s Senior Coroner in Northern Ireland, and thereafter to the Coroner assigned to hear the Inquest inviting them to convene a Preliminary Hearing in order to progress the hearing of the Inquest.
- The Senior Coroner did not assign the Inquest to a Coroner until after the Appellants’ solicitors issued a letter before action on the 17thDecember 2008. The Coroner assigned to hear the Inquest did not convene a preliminary hearing until after the Appellants’ solicitors issued a further letter before action on the 25thJune 2009 threatening judicial review proceedings because of the continuing delay. A preliminary hearing then took place on the 14thSeptember 2009. Further Preliminary Hearings were held on the 12th October 2009, the 1stDecember 2009, the 22nd January 2010 and the 2nd February 2010.
- It is moreover apparent from the correspondence received from the Coroner’s Service that the Police Service for Northern Ireland did not comply with their obligation under section 8 of the Coroner’s Act (Northern Ireland) 1959 to provide the Coroner with disclosure of all documentation concerning the death until the 4th August 2009.
- At the Preliminary Hearing held on the 14thSeptember 2009 the Appellants invited the Coroner to hold an Article 2 compliant Inquest into the deaths, reliance was placed upon the decision of the Grand Chamber in Silih v Slovenia ECHR 571. The Coroner ruled that he was bound by the decisions of the House of Lords inRe McKerr’s Application  1 WLR 807,Jordan v Lord Chancellor & Ano’r  2 WLR 754 and R v Commissioner of Police for the Metropolis, ex parte Hurst  2 WLR 726 and that he could not hold an Article 2 compliant Inquest, although he indicated that the Inquest would be as transparent as possible.
- Subsequently, the Appellants’ legal representatives have received disclosure of documentation from the Police Service Northern Ireland concerning the deaths. These documents have been redacted pending the determination of issues in relation to public interest immunity and/or Article 2 issues.
- At the hearing on the 1st December 2009 the Coroner issued a preliminary view as to the proposed scope of the Inquest and invited the Interested Parties to make representations. The Coroner’s preliminary view was that he should inquire into the planning and control of the operation leading to the deaths of the deceased. The Appellants made representations to the effect that the scope should cover the question of whether the operation was planned and controlled so as to minimise to the greatest extent possible recourse to lethal force. The Police Service Northern Ireland and the Ministry of Defence, who are also represented at the Inquest, made written submissions to the effect that the Coroner was precluded from investigating the planning and control of the operation which led to the deceased’s death. Reliance was placed by the Police Service Northern Ireland and the Ministry of Defence on a decision of the Northern Ireland High Court,Siberry’s Application (No. 2)  NIQB 147. The Coroner has not yet reached a final determination as to the scope of the Inquest.
History of Proceedings
- On the 11th August 2009 the Appellants lodged proceedings applying for leave to judicially review Her Majesty’s Senior Coroner for Northern Ireland and the Coroner seized with hearing the Inquest. Proceedings were lodged against the Chief Constable of the Police Service for Northern Ireland on the 16thSeptember.
- The Appellants’ claim was essentially two-fold:
- i) that the Coroner had violated the Appellants’ Article 2 rights in view of their delay in progressing the Inquest, particularly since the decision of the House of Lords in this case in March 2007; and,
- ii) that the Coroner was obliged to conduct an Article 2 compliant Inquest.
- Weatherup J heard both applications for leave on the 18th September 2009, and on the 23rdSeptember 2009 he in large part dismissed the application, holding that:
- i) In relation to the delay, the Appellants could rely upon Rule 3 of the Coroner’s Rules.
- ii) Following the House of Lords judgment in Kay& O’rs v London Borough of Lambeth & O’rs  2 WLR 570 he was bound to follow the decision of the House of Lords in McKerr’s Applicationeven if it conflicted with an authority of the European Court of Human Rights.
iii) Accordingly, the Coroner was obliged to follow the ruling of the House of Lords’ in McKerr’s Application, such that Article 2 did not apply to the inquest because the deaths pre-dated the coming into force of the HRA.
- The Appellants appealed the refusal of leavefor judicial review on grounds (ii) and (iii) and the Court of Appeal heard the appeal on the 8thFebruary 2010.
- On the 26th March 2010, the Court of Appeal overturned the ruling of Weatherup J and held that:
- i) In light of their obligation under section 2 of the HRA to “take into account” a judgment of the European Court of Human Rights the Court should have regard to the decision in Silih v Sloveniawhich appeared to conflict withMcKerr’s Application inasmuch as it determined that the procedural obligation to investigate was a “detachable” obligation.
- ii) The Appellants had an arguable case that because the procedural obligation to investigate was “detachable”, the inquest had to comply with the investigatory requirements of Article 2 rights since it was to take place after the coming into force of the HRA albeit that the death occurred prior to that date.
iii) Accordingly, it was appropriate to grant the Appellants leave to judicially review the Coroner’s decision that Article 2 did not apply to the inquest.
- iv) That McKerr’s Application was binding on the Court of Appeal and that, whilst leave would be granted, the Appellants’ substantive application would be dismissed.
- Following a hearing on the 26th March 2010, the Court of Appeal granted leave to appeal to the Supreme Court. The Court of Appeal’s decision was influenced by the fact that there were 16 Inquests pending that, according to the European Court of Human Right’s judgment in Silih v Slovenia, would have to be carried out in a way that complied with the investigatory obligation in Article 2.
ISSUES IN THE APPEAL
- In Silih v Slovenia the Grand Chamber overturned its earlier decision in Blecic v Croatia (2006) 43 EHRR 48 and ruled that:
“the procedural obligation to carry out an effective investigation under Article 2 hasevolved into a separate and autonomous duty. Although it is triggered by the acts concerning the substantive aspects of Article 2 it can give rise to a finding of a separate and independent “interference” . . . In this sense it can be considered a detachable obligation arising out of Article 2 capable of binding the State even when the death took place before the critical date.” [Emphasis added]
- At the time that the House of Lords reached its decisions in McKerr’s Application and in(R)Hurst v Commissioner of Police for the Metropolis the approach of the Grand Chamber to the Article 2 procedural obligation was the same as that taken by the House of Lords inasmuch as it was not regarded as “detachable” from the substantive right. In light of the decision in Silih v Slovenia the central issue in the appeal is:
- Whether an inquest into a death that took place before the HRA came into force, which would have had to comply with Article 2 of the Convention had the death taken place after the HRA came into force, must nevertheless comply with the procedural obligations in Article 2 if held after the HRA came into force.