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Cite as: [2004] ScotCS 66, 2004 SCLR 536
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Al Fayed, Re Judicial Review [2004] ScotCS 66 (12 March 2004)
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OUTER HOUSE, COURT OF SESSION |
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P905/03
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OPINION OF LORD DRUMMOND YOUNG in the Petition of MOHAMED MONEIM ALI FAYED Petitioner; for Judicial Review of a decision of the Lord Advocate to refuse to instruct a public inquiry into the death of Emad Al Fayed on 31 August 1997 ________________ |
Petitioner: Keen, QC, Johnston; Maclay Murray & Spens
Lord Advocate: Cullen, QC, Crawford; Richard Henderson, Scottish Executive
Advocate General: Davidson, QC, McCormack; HF McDiarmid, Solicitor to the Advocate General
12 March 2004
[1] The petitioner's son, Emad Al Fayed, commonly known as Dodi, was killed on 31 August 1997 when the car in which he was a passenger collided with one of the roof supports in the Alma Tunnel in Paris. On 14 February 2003 agents acting for the petitioner wrote to the Deputy First Minister and Minister for Justice in the Scottish Executive to ask him to set up a public inquiry into the death of the petitioner's son. That request was transferred to Crown Office, because it related to the investigation of a death and the Lord Advocate has responsibility in Scotland for the investigation of deaths. On 3 April 2003 the request was refused by the Lord Advocate. The Deputy Crown Agent wrote to the petitioner's agents on the Lord Advocate's behalf in the following terms:"The Lord Advocate has now had an opportunity to consider your request that a public inquiry be held in Scotland into the circumstances of Dodi Al Fayed's death. He has noted that the appropriate French authorities have already carried out an investigation into the circumstances of the deaths on 31 August 1997. As these deaths occurred in France, and as there is no evidence to link the circumstances of the deaths to any events in Scotland, the Lord Advocate is satisfied that it would not be appropriate to instruct the Procurator Fiscal or police in Scotland to investigate these deaths. In the absence of such investigations, there would be no basis for holding a public inquiry. It would also not be competent, as you have conceded, to hold a Fatal Accident Inquiry.
The fact that Mr Mohammed Al Fayed has a residence in Scotland cannot of itself justify the involvement of the Scottish authorities in any investigation into deaths which occurred in another jurisdiction".
1. The case law of the European Court of Human Rights and of courts in the United Kingdom, in particular in R v Secretary of State for the Home Department, ex parte Amin, [2003] UKHL 51, establishes that where a person has, or appears to have, been killed as a result of the use of force an effective official inquiry is an essential ingredient in securing the right to life under article 2. For that purpose, it is not necessary that the death should have been caused by agents of the state or occurred while the deceased was held in the custody of the state. It is sufficient that the deceased should have been deprived of his life in circumstances that are unclear and demanding of investigation. In the case of the death of the petitioner's son, the petitioner submits that there are grounds for the view that the crash involving the car in which he was travelling was not accidental and that his son's life was taken by force. In these circumstances, in order to comply with the petitioner's rights under article 2, the Scottish Ministers are obliged to instruct an inquiry into the death.
2. In the present petition, the petitioner seeks to vindicate his own rights under article 2 as next-of-kin of the deceased. The petitioner, who has a residence in Scotland, falls within the jurisdiction of the Scottish Ministers. Consequently the obligation to order an inquiry is incumbent on the Scottish Ministers. The fact that the death occurred in France does not avoid that result. That is because, in terms of article 1 of the Convention, High Contracting Parties are obliged to secure "to everyone within their jurisdiction" the rights and freedoms contained in Section I of the Convention. The United Kingdom is a High Contracting Party, and the petitioner claims that he falls within the jurisdiction of the United Kingdom, and in particular of the Scottish Ministers.
3. The minimum requirements of an effective official investigation under article 2 of the Convention have been laid down by the European Court of Human Rights. These include the following: the investigation must be carried out by an independent person; it must be capable of establishing the cause of death and identifying the person or persons responsible; it must be prompt and reasonably expeditious; it must be open to public scrutiny; and the next-of-kin of the victim must be involved so far as is necessary to safeguard his or her legitimate interests. The death of the petitioner's son has been the subject of an investigation in France by an investigating magistrate. That investigation was not, however, an investigation into who caused the death of the petitioner's son and other persons who were with him in the car. It was rather an investigation into whether certain photographers who had been following the car should be indicted for involuntary culpable homicide and assault and failure to assist persons in danger. A further investigation was directed to the question of whether those photographers had invaded the privacy of persons in the car. The investigations in France are criticised on the ground that they were neither prompt nor reasonably expeditious, and were not open to public scrutiny. Moreover, the petitioner as next-of-kin of his son was not involved to the extent necessary to safeguard his legitimate interests. The investigating magistrate did not allow relatives of the deceased to attend at the examination of witnesses or his inspection of the site of the crash. Limited opportunity was given for independent scrutiny of or challenge to expert evidence. For these reasons it is said that the French investigations did not comply with the requirements of article 2. It is also said that the French investigations proceeded in the absence of certain significant evidence, and had been subject to procedural irregularities.
4. It had been announced that a coroner's inquest would be opened in England into the death of the petitioner's son, but in fact no such inquest had been opened. (In fact, since the first hearing of the petition, the relevant coroner's inquest has been opened). Even if such an inquest took place, its value was likely to be dubious, since a coroner or his jury is unable to frame a verdict that determines or appears to determine any question of criminal or civil liability. That means that the coroner's jurisdiction cannot satisfy one of the crucial requirements of an effective official investigation for the purposes of article 2, namely that it should be capable of identifying the person responsible for the death.
5. The petitioner had presented a petition to the European Court of Human Rights to declare that the investigation proceedings that took place in France are incompatible with articles 2, 6 and 13 of the European Convention on Human Rights. Even if such a petition were successful, the petitioner would only obtain a declaration that the French investigation did not meet the standards of the Convention and an award of nominal damages. France would not be obliged to reopen its investigation. Consequently there was a need for an independent investigation in Scotland.
Two further matters should be noted. First, the petitioner does not contend that a fatal accident inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 should be held into the death of his son; he concedes that that procedure only applies to deaths within Scotland. Instead, he argues that the Lord Advocate should order the holding of a specially convened inquiry. Secondly, in the petition it is stated that the petitioner challenges the validity of the Lord Advocate's decision on two grounds: that it is incompatible with article 2 of the Convention and also that, in arriving at his decision, the Lord Advocate took into account irrelevant factors and failed to take into account relevant factors, rendering the decision unreasonable and wrong in law. At the first hearing, however, the petitioner's counsel confined his argument to the ground based on article 2 of the Convention. In these circumstances the second ground does not appear to have any independent significance, and in this opinion I will concentrate solely on the first ground.
[3] The petition was appointed to a first hearing. The arguments presented at that hearing were concerned essentially with the question of whether the petitioner had, through the petition and accompanying productions, stated a relevant case. Counsel for both the Lord Advocate and the Advocate General submitted that, even taking the petitioner's case at its highest, no basis was disclosed for holding that the Scottish Ministers, including the Lord Advocate, had contravened the petitioner's rights under article 2 of the Convention. [4] In my opinion the petitioner's application for judicial review of the Lord Advocate's decision must fail, for the following reasons.1. It is a general principle of international law that a state normally has exclusive jurisdiction over events that occur within its own territory. The corollary of this principle is that every other state must respect that exclusive territorial jurisdiction. Both the principle and its corollary apply to international treaties, and in particular to the European Convention on Human Rights, the treaty on which the petitioner bases his argument. Consequently the obligations of a High Contracting Party to the Convention normally only extend to events that occur within its own territory. Similarly, each High Contracting Party must normally respect the exclusive jurisdictional competence of any other High Contracting Party over events that occur within the latter state's territory.
2. The death of the petitioner's son occurred in France. It follows that any obligations under the Convention in relation to that death are primarily those of France, and the obligations of the United Kingdom under the Convention do not extend to the investigation of such a death.
3. That result is supported by an analysis of the right on which the petitioner relies. That is the right of the next-of-kin of a deceased person under article 2 of the Convention to an effective official public investigation when it is arguable that that person has been killed as a result of the use of force. That right of the next-of-kin is essentially derivative in nature, being based on the deceased's own right to life. There is no reason that any such right should be enforceable in any jurisdiction other than the state where the death in fact occurred, because that is the state where the deceased's right to life was violated.
4. The United Kingdom is obliged to recognise the jurisdiction of France over the death and the events surrounding it. It follows that the public authorities in the United Kingdom, including the Scottish Ministers and the Court of Session, should not review the manner in which France has investigated the death. If a High Contracting Party to the Convention is alleged to have failed in its obligations under the Convention, the remedy of any person aggrieved by such failure is to apply to the European Court of Human Rights for redress under article 34 of the Convention. In such a case the responsibility for enforcing the Convention is that of the European Court of Human Rights, which is the supranational authority set up under the Convention for that purpose. That is fundamental to the structure of the Convention. In the present case, therefore, the petitioner's primary remedy if he wishes to complain about the conduct of the French investigation is to make an application to the European Court of Human Rights.
5. The petitioner claims that responsibility for investigating his son's death is that of the Scottish Ministers. It is not suggested, however, that the death was caused by the acts of any person for whom the Scottish Ministers are responsible, or that any such person was involved in any way in the death. The only suggestion that persons were involved for whom any agency of government might be responsible relates to the United Kingdom security services; the petitioner alleges that they were 'implicated' in the events leading up to and surrounding the crash that caused the death of his son. Responsibility for the security services, however, is not a matter that has been devolved to the Scottish Ministers under the Scotland Act 1998. Consequently, even if it were arguable that the United Kingdom security services were involved in the death, any responsibility for conducting an investigation must be that of the United Kingdom government, not the Scottish Ministers. In addition, I am of opinion that the petition and the accompanying documentation do not disclose an arguable case for the inference that the United Kingdom security services were implicated in any way in the death or the surrounding events.
I will deal with each of these matters in turn.
Scope of United Kingdom's obligations under European Convention on Human Rights
[5] The primary obligation of each of the High Contracting Parties to the European Convention on Human Rights is stated in article 1 in the following terms:"Obligation to respect human rights
The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention".
Section I, which comprises articles 2-18, sets out the substantive rights that are guaranteed by the Convention. Article 1 is not incorporated into the domestic law of the United Kingdom by the Human Rights Act 1998. The reason for that is obvious; article 1 is the provision that renders the Convention binding on the High Contracting Parties, but it does not of itself confer any specific rights on persons who find themselves within the jurisdiction of any High Contracting Party. Thus it has no place in domestic law. Nevertheless, it is appropriate for the court to have regard to article 1 in considering the scope of the United Kingdom's obligations under the Convention because that is the provision that defines the obligations undertaken by the United Kingdom as a High Contracting Party. In particular, it is clear that article 1 defines the geographical or other extent of the obligations so undertaken by the United Kingdom and other High Contracting Parties.
[6] The contention for the petitioner is that his right to a proper investigation of the death of his son is a right personal to him, and he can be regarded as resident in the United Kingdom and resident in Scotland for at least a substantial part of the time. Consequently he is within the jurisdiction of the United Kingdom for the purposes of article 1, and the correlative obligation to conduct an investigation into the death is that of the Lord Advocate. The principle that is said to underlie this contention is that the "jurisdiction" of a High Contracting Party for the purposes of article 1 extends to any person who is present within its territory, to the extent of securing every right under the Convention that such person may have, regardless of whether the event that gave rise to the right occurred within the territory of that High Contracting Party. In other words, jurisdiction for the purposes of article 1 is essentially personal, founded on the presence of an aggrieved person within a state, rather than territorial, founded on events that take place within the territory of a state. [7] In my opinion this contention is incorrect; "jurisdiction" in article 1 of the Convention is to be understood in a territorial sense. Thus the responsibility of a High Contracting Party under the Convention is confined, generally speaking, to events that take place within its own territory. The primary reason for this conclusion is that as a matter of international law the jurisdiction of a state is normally understood in a territorial sense, and that principle is applied to treaties. The application of that principle to the Convention has been affirmed by the European Court of Human Rights. Moreover, the conclusion is strongly supported by a number of practical considerations, and also by an analysis of the right claimed by the petitioner under article 2 of the Convention.International law and the interpretation of the Convention
[8] The European Convention on Human Rights was concluded against a background of customary international law, and the obligations that it imposes on High Contracting Parties must be construed in the light of that background. Under international law, the jurisdiction exercised by a state is primarily territorial. While exceptions exist, notably in relation to ships and aircraft and diplomatic and consular premises, the primary rule is that a state is entitled to exercise jurisdiction over all persons and things within its own territory. The corollary of this rule is that each state must respect the competence of every other state to exercise jurisdiction over all persons and things within its territory. The general approach of international law is clearly set out in two passages from the leading British textbook on the subject, Oppenheim's International Law, 9th edition, 1992, edited by Jennings and Watts. The first is found at paragraph 137 of volume 1:"Territorial jurisdiction. As all persons and things within the territory of a state fall under its territorial authority, each state normally has jurisdiction -- legislative, curial and executive -- over them. Territoriality is the primary basis for jurisdiction; even if another state has a concurrent basis for jurisdiction, its right to exercise it is limited if to do so would conflict with the rights of the state having territorial jurisdiction. Thus even though a state has personal jurisdiction over its nationals abroad, its ability to enforce that jurisdiction is limited so long as they remain within the territory of another state: as the Permanent Court of International Justice said in the Lotus case in 1927, 'a State... may not exercise its power in any form in the territory of another State'; jurisdiction 'cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention' (PCIJ, Series A, No 10, pp 18-19)".
The second passage is found at paragraph 169 of volume 1, where the same matter is considered in the context of state territory:
"Importance of state territory. The importance of state territory is that it is the space within which the state exercises its supreme, and normally exclusive, authority. State territory is an object of international law, because that law recognises the supreme authority of every state within its territory; which authority must of course be exercised in accordance with international law. Whatever person or thing, is on, or enters into, that territory, is ipso facto subjected to the supreme authority of the state: Quidquid est in territorio, est etiam de territorio and Qui in territorio meo est, etiam meus subditus est. No other state may exercise its power within the boundaries of the home territory; however, international law does, and international treaties may, restrict the territorial sovereign in the exercise of its sovereignty, and, for example, foreign sovereigns and diplomatic envoys enjoy certain privileges and immunities. The exclusive dominion of a state within its territory is basic to the international system...".
"59. As to the 'ordinary meaning' of the relevant terms in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State's exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are as a general rule defined and limited by the sovereign territorial rights of the other relevant States....
60. Accordingly, for example, a State's competence to exercise jurisdiction over its own nationals abroad is subordinate to that State's and other States' territorial competence.... In addition, a State may not actually exercise jurisdiction on the territory of another without the latter's consent, invitation or acquiescence unless the former is an occupying State, in which case it can be found to exercise jurisdiction in that territory, at least in certain respects...
61. The Court is of the view, therefore, that Article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case..".
"Finally, the Court finds clear confirmation of this essentially territorial notion of jurisdiction in the travaux préparatoires which demonstrate that the Expert Intergovernmental Committee replaced the words 'all persons residing within their territories' with a reference to persons 'within their jurisdiction' with a view to expanding the Convention's application to others who may not reside, in a legal sense, but who are, nevertheless, on the territory of the Contracting States...".
The Court's conclusion on the scope of article 1 of the Convention is stated in paragraphs 65 and 66 of its decision in the following terms:
"65. However, the scope of Article 1, at issue in the present case, is determinative of the very scope of the Contracting Parties' positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection as opposed to the question... of the competence of the Convention organs to examine a case. In any event, the extracts from the travaux préparatoires detailed above constitute a clear indication of the intended meaning of Article 1 of the Convention which cannot be ignored. The Court would emphasise that is not interpreting Article 1 'solely' in accordance with the travaux préparatoires or finding the latter 'decisive'; rather this preparatory material constitutes clear confirmation in evidence of the ordinary meaning of Article 1 of the Convention as already identified by the Court...
66. Accordingly, and as the Court stated in Soering [Soering v United Kingdom, 7 July 1989, Series A no 161]:
'Article 1... sets a limit, notably territorial, on the reach of the Convention. In particular the engagement undertaken by a Contracting State is confined to "securing" ("reconnaître" in the French text) the listed rights and freedoms to persons within its own "jurisdiction". Further, the Convention does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States'".
"Furthermore, the applicants' notion of jurisdiction equates the determination of whether an individual falls within the jurisdiction of a Contracting State with the question of whether that person can be considered to be a victim of a violation of rights guaranteed by the Convention. These are separate and distinct admissibility conditions, each of which has to be satisfied, in the aforementioned order, before an individual can rely on the Convention provisions against a Contracting State".
In my opinion exactly the same criticism can be made of the attempt by the petitioner to place the notion of jurisdiction on an essentially personal basis. The effect of such an approach is to equiparate jurisdiction with the violation of Convention rights, subject only to a requirement that the person asserting the Convention rights should be present within the jurisdiction of the state in question. The requirement of presence within a state, however, is clearly of minimal significance. Consequently I consider that the petitioner's approach to jurisdiction is incorrect on this additional basis.
[14] The approach adopted by the European Court of Human Rights in Bankovic has been followed in a number of subsequent cases both before that court and in the courts of the United Kingdom. In Al-Adsani v United Kingdom, (2002) 34 EHRR 11, a case decided prior to Banković, the applicant claimed that he had been tortured in Kuwait by agents of the government there. He had raised proceedings in the English courts against the Sheikh and government of Kuwait in an attempt to obtain damages. His attempts to obtain payment under a default judgment (decree in absence) were met by a plea of state immunity, which was upheld by the English courts. The applicant argued before the European Court of Human Rights that the United Kingdom had failed to secure his right not to be tortured, contrary to article 3 of the Convention. That argument failed, on the ground that the allegations of torture related to events that had taken place outside the jurisdiction of the United Kingdom. Although the principle of territoriality is not expressly discussed, it is clear that it formed the basis of the Court's decision. In Öcalam v Turkey, (2003) 37 EHRR 10, the reasoning in Banković was expressly followed: see paragraph 93. In that case, the applicant was arrested by members of the Turkish security forces in the international zone of Nairobi Airport. He had been handed over to the Turkish security forces by Kenyan officials. In the circumstances the Court held that he was under effective Turkish authority and was therefore brought within Turkish jurisdiction for the purposes of article 1 of the Convention, even though in that instance Turkey was exercising its authority outside its territory. On its facts, therefore, the case represents an exception to the general rule that the concept of jurisdiction in article 1 is territorial. The justification for the exception is clearly that Turkey was, with the consent of Kenya, exercising effective control within the latter state's territory. In R (ex parte Abbasi) v Secretary of State for Foreign & Commonwealth Affairs, [2002] EWC Civ 1598, Banković was followed by the Court of Appeal in England. The conclusions reached by the Court were expressed as follows (by Lord Phillips MR at paragraph 76):"i) The jurisdiction referred to in Article 1 of the Convention will normally be territorial jurisdiction.
ii) Where a State enjoys effective control of foreign territory, that territory will fall within its jurisdiction for the purposes of Article 1.
iii) Where, under principles of international law, a State enjoys extra-territorial jurisdiction over an individual and acts in the exercise of that jurisdiction, that individual will be deemed to be within the jurisdiction of the state for the purposes of Article 1, in so far as the action in question is concerned".
Banković was also followed by Collins J. in R (Quark Fishing Ltd) v Secretary of State for Foreign & Commonwealth Affairs, [2003] EWHC 1743: see paragraph 19 of the judgment.
Practical considerations
[15] Thus the principle that the concept of jurisdiction in article 1 is territorial in nature is amply supported by authority. It is also supported by a number of important practical considerations.1. If jurisdiction were personal rather than territorial in nature, the scope of a state's obligations under the Convention would be very far reaching indeed. During the hearing, I raised the example of an Afghan refugee from the Taliban regime who obtained political asylum in the United Kingdom. Such an individual might well be able to claim that the lives of several of his close relatives had been taken by force by the Afghan authorities. If the petitioner is correct that jurisdiction is personal in nature, it would follow that the Lord Advocate was obliged to conduct an investigation into the circumstances of the death of each of those relatives. When asked about this conclusion, counsel for the petitioner accepted that it must be correct. He submitted, however, under reference to R (Amin) v Secretary of State for the Home Department, [2003] UKHL 51, at paragraph 20(5), that the scope of an investigation might vary according to the circumstances of the case. Where a death had occurred in a country such as Afghanistan where the collection of evidence was clearly impossible or impracticable, the investigation might be of a purely formal nature. I am bound to say that I do not regard that as an attractive result. I can see no purpose whatsoever in a wholly formal exercise of that nature. More generally, if the Lord Advocate were obliged to conduct an investigation into the death by force of any person whose next of kin came to be present in Scotland, the effort involved would clearly be very great indeed. I cannot believe that the purpose of the Convention is to produce such a result.
2. If jurisdiction were personal in nature, it would be relatively easy for the close relatives of a person whose life had apparently been taken by force to call for investigations in a range of countries. Such relatives might come to be present in various different High Contracting Parties, and if the petitioner is correct it would seem that each of those relatives could call for a separate investigation in the country in which he or she happened to be present. Once again, it seems most unlikely that such a result is contemplated by the Convention.
3. If the authorities in one High Contracting Party were obliged to conduct an investigation into a death that has occurred in the territory of another High Contracting Party, the process of collecting evidence would inevitably be difficult. The witnesses are most likely to be present in the country where the death occurred. Any real evidence, such as the car in which the deceased was travelling in the present case, is likely to be situated there, and any tests carried out on such evidence are likely to have occurred there. Any documentary evidence is likely to be found there. The initial police investigation, which is clearly of the utmost importance when a death is investigated, will inevitably have taken place in the country where the death occurred. Any post-mortem is also likely to have taken place there. In short, the evidence relating to the death will nearly always be situated predominantly in the country where the death took place. In these circumstances an investigation by any other state will face formidable difficulties; indeed, unless the state where the death occurred is willing to co-operate, the difficulties in recovering evidence are likely to be insuperable. Both the European Court of Human Rights, in Jordan v United Kingdom, (2001) 37 EHRR 52, at paragraphs 105 and 107, and other cases, and the House of Lords, in R (Amin) v Secretary of State for the Home Department, supra, at paragraphs 18 and 20(6), have held that, if it is to satisfy the requirements of article 2 of the Convention, any investigation of a death must be effective. If one state is obliged to examine a death that occurred in territory of another, the likelihood of achieving an effective investigation is clearly low. Once again, it seems unlikely that article 2 is intended to compel an investigation in such circumstances.
Analysis of article 2
[16] Article 2(1) declares that "Everyone's right to life shall be protected by law". That relatively simple provision has been interpreted by the European Court of Human Rights to impose at least three distinct obligations on states. First, the state has a "primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions": Osman v United Kingdom, (1998) 29 EHRR 245, at paragraph 115. Secondly, in certain circumstances article 2 may impose "a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual": ibid. Thirdly, the state's general duty to secure the right contained in article 2 "requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State": McCann v United Kingdom, (1995) 21 EHRR 97, at paragraph 147; Jordan v United Kingdom, supra, at paragraph 105; Edwards v United Kingdom, (2002) 35 EHRR 487, at paragraph 69; R (Amin) v Secretary of State for the Home Department, supra, at paragraphs 19-22. It is the third of those obligations that is relied on by the petitioner. [17] The obligation to hold an effective official investigation was described in McCann v United Kingdom, supra, at paragraph 193, as a "procedural aspect" of the basic right to life. In my opinion it is clear that that obligation is essentially secondary to the primary obligations to impose effective criminal sanctions and to protect persons whose lives are in danger. If a life is successfully protected, no investigation can be required, and if there is a criminal prosecution in respect of a death which results in a full examination of the relevant facts and circumstances, a separate investigation into the death will not usually be necessary. If, however, a person's life is taken by force and there is no prosecution, or the prosecution does not result in a full examination of the circumstances of the death, a separate independent public inquiry may then be necessary, as in Amin. The purpose of such an inquiry was described in Jordan v United Kingdom, supra, in the following terms (at paragraph 105):"The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility".
That purpose relates essentially to the public interest in protecting the right to life and the due implementation of legal and administrative procedures that are designed to protect the right to life.
[18] Such an investigation serves a further purpose, however. In Jordan v United Kingdom, supra, the European Court of Human Rights held (at paragraph 109), that"In all cases... the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests".
In Amin Lord Slynn of Hadley, at paragraph 41, described the state's duty to investigate as partly owed to the next-of-kin of the deceased as representing the deceased. The notion of representation is obviously not to be understood in any technical legal sense; nevertheless, it seems clear that the position of the next-of-kin is one that is derived from the deceased himself. Consequently the investigation that is required by article 2 when a life is taken by force can be regarded as fulfilling two purposes: first, furthering the public interest in the enforcement of legal and other provisions that protect the right to life, and secondly protecting the interests of those who represent the deceased.
[19] When these purposes are taken into account, it is very clear in my opinion that in the present case the Scottish authorities do not have an interest in investigating the death of the petitioner's son. The death in question occurred in France. Consequently the legal or other provisions that operated to protect the deceased's life at the relevant time were those of France, not of Scotland. Moreover, the deceased had chosen to visit France voluntarily. Had his life been threatened at the time of his death, it is to the French authorities and French law that he would necessarily have looked for protection. In these circumstances it is impossible to say that the fundamental purposes of the obligation to investigate a death would be fulfilled by a Scottish investigation; they rather concern French law and the French authorities, and thus properly form the subject of a French investigation. That consideration strongly reinforces the fundamental principle of international law that jurisdiction is primarily territorial; indeed it provides a clear rationale for the application of that principle in cases where a death has to be investigated.Obligation to respect French jurisdiction: remedies under the Convention
[20] The principle of international law that a state enjoys jurisdiction within its own territory has a corollary: every state is obliged to respect the jurisdictional competence of every other state within its territory. As a matter of general international law, that is clear from the passages from Oppenheim's International Law, at paragraphs 137 and 169, quoted above. The result is that each state enjoys exclusive jurisdiction within its own territory, subject only to a very limited number of exceptions, which are discussed below. In my opinion this principle must apply to the European Convention on Human Rights, for two reasons. In the first place, the principle is one that is well recognised in international law, and it is clear from cases such as Banković that the ordinary principles of international law that govern the jurisdiction of states apply to the Convention. Indeed, the principle that every state must respect the jurisdictional competence of every other state within its territory is the corollary of the principle applied in Banković, that a state's jurisdiction normally extends only to its own territory. In the second place, the structure of the Convention as a whole indicates that it is built around the principle of the exclusive territorial jurisdiction of each High Contracting Party. This appears from the provisions of the Convention that deal with breaches of their obligations by High Contracting Parties. The scheme of the Convention is that any complaint about such a breach must be taken not to the authorities of another state but to a supranational authority, the European Court of Human Rights. The European Court of Human Rights is established by article 19 of the Convention:"Establishment of the Court
To ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto, there shall be set up a European Court of Human Rights... It shall function on a permanent basis".
Thus the function of the Court is to secure the observance of their Convention obligations by the High Contracting Parties. Article 34 then provides as follows:
"Individual applications
The Court may receive applications from any person, non-governmental organisations or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols there to. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right".
This article permits individual applicants who claim to be aggrieved by a breach of Convention obligations by a High Contracting Party to take their complaint to the European Court of Human Rights. In this way, an authoritative determination can be obtained as to whether there has been a breach of the Convention by any High Contracting Party.
[21] In the present case an investigation into the death of the petitioner's son has taken place in France. It was conducted by an investigating magistrate, Judge Stephan, who on 3 September 1999 made an order directing that no criminal proceedings should take place. The petitioner makes a number of complaints about that investigation. First, he claims that the French investigation was concerned solely with the question of whether criminal liability could be established against the press photographers who had been pursuing the car in which his son was travelling; it had not been concerned with an investigation of the death as such. Secondly, he complains that various procedural irregularities had taken place during the investigation, and that certain crucial inquiries had not been made by the French authorities. Thirdly, he states that the French investigation had not taken place in public, as is required to satisfy article 2. Fourthly, he states that he as his son's next-of-kin was not involved to any significant extent in the French investigation and in any event was not involved to the extent necessary to safeguard his legitimate interests. Fifthly, he claims that the French investigation proceeded too slowly. For these reasons the petitioner asserts that the French investigation did not meet the standards required by article 2 of the Convention. In my opinion the petitioner's remedy, if he wishes to maintain those complaints, is to make an application to the European Court of Human Rights in accordance with article 34 of the Convention. In that way he will be able to obtain an authoritative determination as to whether France has been in breach of its obligations under the Convention. It is quite inappropriate in my view that a Scottish court should pronounce on the compatibility of the French investigation with the requirements of article 2 of the Convention. That would amount to a plain contravention of France's exclusive territorial sovereignty in respect of the investigation of deaths that take place within her territory and judicial control over such investigations. [22] The petitioner has in fact lodged a petition with the European Court of Human Rights, in which he claims that the investigation by the French authorities into the death of his son did not fulfil the requirements of article 2 of the Convention. The basic propositions on which he founds in his application to the Court are as follows:"In accordance with the case law of the European Court, article 2 of the Convention implies an obligation for the States to carry out an official enquiry into the circumstances of any death, that is to say a detailed, impartial and careful enquiry which must lead to the identification and punishment of those who are responsible for the death...
Mr Mohamed Al Fayed requests the Court to rule that the enquiry carried out concerning the circumstances of the death of his son Emad Fayed did not fulfil the requirements of seriousness and fairness laid down by the European Convention".
A number of highly particular complaints are then made about the conduct of the French investigation. I was informed that the European Court of Human Rights has not yet ruled on the admissibility of the petition, and the French government has not been called upon to lodge answers. It seems clear, however, that if there is any substance in the petitioner's contention that the French investigation did not meet the standard required by article 2, this petition will be an appropriate vehicle to have the issue determined.
[23] Counsel for the petitioner submitted that the consequence of the application to the European Court of Human Rights, if successful, would merely be an award of nominal damages. France would not be under any obligation to reopen the investigation proceedings, and it would not necessarily follow that the investigation would be reopened. In my opinion that submission is irrelevant. France is a party to the Convention, and the authorities in the United Kingdom must assume that she will fulfil her obligations under it. That applies both to the Lord Advocate as the person responsible in Scotland for the investigation of deaths and to the Court of Session. [24] This leads on to a further point. It would in my opinion be quite inappropriate for the Court of Session to criticise the proceedings that have taken place in France under the direction of the investigating magistrate and in the French courts. For the reasons discussed above, the Scottish courts have no jurisdiction over the actings of French public authorities within French territory. That includes both the conduct of proceedings by an investigating magistrate and proceedings in the French courts. Apart from the general rule of jurisdiction, it would in any event be manifestly inappropriate if the courts of one legal system were to embark on the review of proceedings carried out under another system, which can be expected to have wholly different procedures and rules. That is particularly relevant in the present case, because the institution of juge d'instruction (investigating magistrate) has no equivalent in Scots law. A Scottish court cannot therefore be expected to have any informed understanding of the procedure before such a magistrate, and is thus not well qualified to comment on a French investigation into a death. [25] In relation to the French proceedings, however, I must observe that a thorough process of review appears to have been conducted by the French courts. The investigation carried out by the juge d'instruction was the subject of a number of applications by the petitioner and others to the Cour d'Appel in Paris and to the Cour de Cassation. The applications to the Cour d'Appel were made to the division of the court known as the Chambre d'Accusation, whose function is to review decisions made by juges d'instruction. The Cour d'Appel issued its first two decisions on 31 October 2000. It is clear from the first of its opinions of that date, which dealt with the juge d'instruction's decision that no criminal proceedings should take place, that the investigation by the magistrate covered a great deal of evidence. In the opinion of the Cour d'Appel, the investigation is described as "particulièrement complète et meticuleuse" (particularly thorough and meticulous). The decision of the juge d'instruction that no proceedings should take place was upheld. In a second opinion issued on the same date in relation to a claim for civil damages made by the present petitioner to the juge d'instruction, the Cour d'Appel criticised delay that had occurred in the investigation of that particular claim and ordered the magistrate to hear certain further witnesses. The present petitioner and the parents of the driver of the car in which the petitioner's son was travelling appealed against the first of the decisions of 31 October 2000 to the Cour de Cassation, which issued its decision on the matter on 3 April 2002. Article 2 of the Convention was discussed in the course of the hearing, which resulted in the dismissal of the appeal. The petitioner's claim for civil damages was dismissed by the Tribunal de Grande Instance in Paris on 7 November 2002. The petitioner appealed against the decision to the Cour d'Appel, which dealt with the appeal on 28 April 2003. The Cour d'Appel criticised the handling of the petitioner's claim for civil damages by the juge d'instruction, in particular the delay that had occurred in investigating the civil claim. The petitioner was awarded damages of €15,000. It is thus clear that the French investigation has been the subject of detailed scrutiny in the French courts. As I have indicated, I think it wholly inappropriate that a Scottish court should review such proceedings in the French courts. If the claim is to be maintained that the French proceedings were contrary to article 2 of the Convention, that must take place before the European Court of Human Rights.Exceptions to the principle of exclusive territorial jurisdiction
[26] The principle of international law that a state enjoys exclusive jurisdiction within its own territory is subject to certain rather limited exceptions. These include jurisdiction over ships and aircraft and over diplomatic and consular premises and personnel. Applications for asylum and proceedings for extradition may also be regarded as forming exceptions to the general principle; so may cases where one state is in effective control of the territory of another and cases where one state exercises jurisdiction within the territory of another with the latter state's consent. The European Court of Human Rights has recognised that certain of these exceptions, at least, apply to article 1 of the Convention: see Cyprus v Turkey (2002) 35 EHRR 30, and Öcalam v Turkey, supra. It is not necessary, however, to give further consideration to these exceptions, because it is clear that none has any application to the present case, and no such contention was made on the petitioner's behalf.Obligations incumbent on the Scottish Ministers
[27] The petitioner claims that the responsibility for investigating his son's death is that of the Scottish Ministers. It is not claimed, however, that the death was brought about in any way by any person for whose actings the Scottish Ministers were responsible; nor is it claimed that any such person played any part in the events surrounding the death. The only assertion that the petitioner makes as to the involvement of any government agency of the United Kingdom is an averment that"The security services, in particular those of the United Kingdom Government constituted under the Security Services Act 1989 and the Intelligence Services Act 1994, are implicated in the events leading up to and surrounding the crash". A number of reasons are then stated for that conclusion, which were developed to some extent by counsel in his submissions on behalf of the petitioner. On this basis, it was argued that the United Kingdom, and the Scottish Ministers in particular, are subject to the principle expressed in the following terms by Lord Bingham of Cornhill in R (Amin) v Secretary of State for the Home Department, supra (at paragraph 20):
"(1) It is established by McCann ....Yaşa v Turkey ....Salman ....and Jordan ...that (as it was put in McCann):
'The obligation to protect the right to life under [article 2(1)], read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention" requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.'
(2) Where agents of the State have used lethal force against an individual the facts relating to the killing and its motivation are likely to be largely, if not wholly, within the knowledge of the State, and it is essential both for the relatives and for public confidence in the administration of justice and in the State's adherence to the principles of the rule of law that a killing by the state be subject to some form of open and objective oversight ...".
Counsel for the Lord Advocate and the Advocate General submitted that this principle had no application to the Scottish Ministers for two reasons. First, the Scottish Ministers have no constitutional responsibility for the security services of the United Kingdom, and accordingly could not be responsible for investigating their actions. Secondly, no material had been placed before either the Lord Advocate or the court on the basis of which the view could reasonably be taken that the petitioner's son's life had been taken by the United Kingdom security services.
[28] In my opinion the principle that the state has a duty to investigate instances where individuals have been killed as a result of the use of force by agents of the state has no application to the present case, essentially for the reasons advanced by counsel for the Lord Advocate and the Advocate General. In the first place, even if evidence existed to implicate the United Kingdom security services in the death, the responsibility for holding an inquiry would rest with the United Kingdom government and not the Scottish Ministers; that is the result of the devolution settlement contained in the Scotland Act 1998. In the second place, the averments made by the petitioner to support the inference that the United Kingdom security services were implicated in the death are in my opinion irrelevant; even if they are correct, they do not provide any sound factual basis for the inference that the petitioner seeks to draw. I will deal with each of those reasons in turn.Constitutional position of the Scottish Ministers
[29] The responsibilities of the Scottish Ministers are set out in the Scotland Act 1998. The scheme of the Act, found in sections 29, 30 and 53-56 and Schedule 5, is that the Scottish Parliament and Scottish Ministers are given general legislative and executive competence in relation to Scotland except in relation to reserved matters. Reserved matters are defined in Schedule 5. In these cases legislative and executive competence remains with the United Kingdom Parliament and Government. The first of the reserved matters, found in paragraph 1(a) of Schedule 5, is the Crown. Paragraph 2(1)(b), however, provides that paragraph 1 does not reserve "functions exercisable by any person acting on behalf of the Crown". The effect of that provision is that ministerial functions are not reserved by paragraph 1; any reservation of such functions must be found in the subsequent paragraphs of Schedule 5. Paragraph 2(1) is nevertheless subject to paragraph 2(4), which is in the following terms:"Sub-paragraph (1) does not affect the reservation by paragraph 1 of the functions of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters".
The country's security and intelligence services are clearly part of the Crown's prerogative, and as such are not treated as if they were ordinary government departments; instead they are treated as a manifestation of the Crown. Responsibility for such services is accordingly a reserved matter, and the Scottish Ministers have no responsibility for them.
[30] Counsel for the petitioner submitted that the right to an investigation into a death is not a reserved matter, and that he could look to the Scottish Ministers, and in particular to the Lord Advocate, for an official investigation into his son's death. In my opinion that argument fails to give proper recognition to the structure of the devolution settlement contained in the Scotland Act. Under the Scotland Act, responsibility for the various functions of government is divided between Edinburgh and Westminster in the manner described in the last paragraph. So far as the European Convention on Human Rights affects any function of government, responsibility for securing compliance with the Convention rests with the body, either the United Kingdom Government or the Scottish Ministers, that is responsible for the particular function in question. That in my view is very clear from the structure of the Scotland Act. Consequently, in order to decide which of the United Kingdom Government or the Scottish Ministers is responsible for investigating a death, it is necessary to determine the function of government that creates the need for an investigation. If the death had occurred in Scotland, the relevant function would be that of investigating deaths in Scotland, which is the responsibility of the Lord Advocate. In the present case, however, the death occurred abroad, and it is said that a factor that gives rise to an obligation on the part of the United Kingdom to investigate it is the possible implication of members of the United Kingdom security services. That does not involve the function of investigating deaths in Scotland; it rather involves the function of controlling the security services, and in particular of ensuring that they are duly accountable under the law. The latter function is not a devolved matter, for the reasons set out in the last paragraph. Consequently any responsibility for investigating the death must be that of the United Kingdom Government, not of the Scottish Ministers. That is a further reason for holding the present petition to be irrelevant.Factual basis for claim that security services implicated
[31] I am further of opinion that the petitioner does not disclose a sufficient factual basis for the inference that the United Kingdom security services were implicated in the death of his son. At the outset I should mention a significant ambiguity in the petitioner's case. In the petition, it is averred that the security services of the United Kingdom are "implicated" in the events leading up to and surrounding the crash. That statement is followed by a number of more detailed averments, and these were developed to some extent by counsel for the petitioner in his submissions. In the more detailed averments and in submissions, reliance was placed on suggestions that the United Kingdom security services, and possibly the security services of France and the United States, were aware of matters that might be relevant to explaining the death of the petitioner's son. In my opinion averments of mere knowledge on the part of the British security services are irrelevant for the purpose of determining whether the United Kingdom has an obligation to investigate the death. It is only active participation in the events that caused the death that would be relevant for this purpose. That appears from the formulation of the relevant principle in McCann v United Kingdom, supra, quoted in paragraph [27] above, which makes it clear that the obligation to investigate arises when individuals have been killed as a result of the use of force by, inter alios, agents of the state. In R (Amin) v Secretary of State for the Home Department, supra, a similar duty to investigate was held to apply where a person was in the custody of the state at the time when his life was taken by force. It is obvious that the latter principle has no application to the present case, and no such contention was made on the petitioner's behalf [32] One further point should be mentioned at this stage. In determining whether there is a sufficient factual basis to conclude that the United Kingdom's security services might have been implicated in the petitioner's son's death, only allegations of fact that appear to be based on concrete evidence will suffice. Allegations that are more properly characterised as supposition or speculation or conjecture are irrelevant. [33] The averments relating to implication of the United Kingdom's security services in the death, as supplemented by counsel's submissions, are as follows. First, it is said that officers of the British security services were present in Paris at the time of the crash, and were likely to have been conducting surveillance on the car in which the petitioner's son was travelling. Secondly, it is said that among the press photographers outside the Ritz Hotel, from where the car began its journey, were two individuals not recognised by the other photographers who appeared to be speaking English; it is suggested that those were agents of the British security services. Thirdly, it is stated that it is "probable" that the driver of the car was an informant of the British security services. The basis for this is said to be that the driver was head of security at the Ritz Hotel and that security officers at prestigious hotels, such as the Ritz Hotel in Paris, are routinely targeted by security services. In addition a former member of the British secret intelligence service, MI6, one Richard Tomlinson, had given sworn evidence that he was aware from MI6 files that MI6 had an informant who was a security officer at the Ritz Hotel and who was of French nationality; the driver fitted that description. I should add that Tomlinson, on his own admission, had left MI6 in acrimonious circumstances. Fourthly it is said that James Andanson, a press photographer, worked for the French security services and was in the vicinity at the time of the crash. He is also said to have been the owner of a white Fiat Uno which had suffered certain damage to the rear left-hand tail light and wing. The car in which the petitioner's son was travelling appeared to have collided with a white Fiat Uno after it entered the Alma Tunnel. Fifthly, it is said that assertions by the United Kingdom security services that they have no involvement in illegal activities such as assassinations are not credible in view of the report of Sir John Stevens into two murders in Northern Ireland in the late 1980s, where it appears that the security forces there had colluded with the paramilitaries who were responsible for the murders. Sixthly, it is said on the authority of Richard Tomlinson that the United Kingdom security services had devised a technique of blinding the driver of a car in a tunnel by setting off a bright stroboscopic flash. Two eye-witnesses to the crash claimed to have seen flashes in the tunnel immediately before the crash occurred. On this matter, counsel expanded on the pleadings by reference to summaries of the statements that the witnesses gave to the police and to Judge Stephan. [34] In my opinion these averments do not, either individually or collectively, support any inference that the British security services played an active part in the death of the petitioner's son. The fact that officers of the British security services were present in Paris is perhaps hardly surprising, and provides no basis for linking them to the death of the petitioner's son. If they were carrying out surveillance operations on the car, that is likewise irrelevant, since that does not in any way suggest active participation in the death. At the most it suggests that the security services might have information relating to the death, although even that is perhaps doubtful in view of the fact that it resulted from the crashing of a car travelling at high speed and pursued by press photographers. As I have indicated above, mere knowledge on the part of its agents is not sufficient to bring about an obligation on the United Kingdom to investigate the death. Similarly, the fact that the press photographers may have included British agents is irrelevant without any evidence that those individuals played a part in causing the death; no such evidence is put forward by the petitioner. The claim that the driver of the car may have been an informant of MI6 is likewise clearly irrelevant. It is not suggested that he was any more than an informant. In any event, it seems highly improbable that the driver of the car could have been responsible for more than careless or dangerous driving. Anything more would mean that he deliberately crashed the car that he was driving, thereby running a serious risk of killing himself. No such suggestion is made by the petitioner. The alleged involvement of Andanson and his Fiat Uno appears mere speculation. There is no indication of any hard evidence that his car was involved, and in any event it is said that he worked for the French rather than the British security services. The statements based on the Stevens report likewise appear wholly irrelevant. The fact that certain elements in the British security services were responsible for serious criminal conduct in Northern Ireland during the late 1980s does not indicate that such conduct occurred in any other case; that would be the wildest speculation. [35] Finally, the suggestion that British security services had developed a technique of blinding drivers by using a stroboscopic flash appears wholly speculative in relation to the present case. The two eye-witnesses to the crash who claimed to have seen flashes shortly beforehand each gave markedly different accounts of what happened. The petitioner's pleadings on this matter are supplemented by summaries of the evidence that the two witnesses gave to the police and to Judge Stephan in the course of the French investigation. The first witness, François Levistre, was driving in front of the car in which the petitioner's son was travelling. He stated that he saw a vehicle escorted by motorcycles in his rear view mirror; that was clearly the car in which the petitioner's son was travelling and the press photographers who were following it. As he was coming to the tunnel exit he saw a motor cycle cut in front of the other car and what he described as a great white flash. The car then zig-zagged, and he left the tunnel at that moment. The second witness, Benoit Thierry Boura, was travelling in the opposite direction in the tunnel at the time of the crash. Before entering the tunnel he had seen flashes, which he thought were police radar flashes. He stated that, having gone through a third of the tunnel, he did not see any other flashes. He then heard a screeching of tyres and a noise of what he thought was two vehicles colliding. He saw the Mercedes car in which the petitioner's son was travelling go out of control, hit a pillar and end up against the tunnel wall facing in the opposite direction. When he saw the Mercedes losing control he saw a small dark coloured car in front of it, which accelerated at the moment of loss of control by the Mercedes. The Mercedes had been followed by a motor cycle, which the witness saw slow down, pass the Mercedes and then accelerate. He thought that the Mercedes had hit the car in front and as a result lost control. It is obvious that these two witnesses differ quite substantially in their account of the events leading to the crash. Mr Boura, who was facing the Mercedes and who provides a detailed description of the crash itself, expressly states that he saw flashes before he entered the tunnel but that he did not see any other flashes after he had entered; he accordingly provides no support for the petitioner's averments on this matter. That seriously cuts away the evidential foundation for the petitioner's case. Moreover, Mr Levistre merely refers to a "great white flash". He says nothing about its likely cause, and there is nothing to indicate that the flash might have been caused by a stroboscopic device. Once again, the evidential foundation for the petitioner's case appears extremely weak. In all the circumstances I am of opinion that it is quite impossible to draw any rational inference that the crash was brought about by British security services using some form of stroboscopic device. In this connection I should draw attention to an important finding made by the Chambre d'Accusation of the Paris Cour d'Appel in the first of its decisions of 31 October 2000. On page 10 of the decision, the court points out that, according to the French experts who investigated the crash, the Mercedes was travelling at speeds of between 118 and 155 km per hour (73 and 97 mph), and at the moment when the collision occurred its speed was between 95 and 109 km per hour (59 and 68 mph). Speeds of that nature, in the centre of a large city, suggest that it is not necessary to invoke any outside agency such as a stroboscopic flash to explain why the Mercedes crashed. I have discussed this part of the petitioner's argument in some detail because I think that it provides a very clear illustration of the essentially speculative nature of the assertion that British security services were implicated in the events leading up to and surrounding the crash. [36] The petitioner's averments and supporting submissions must of course be considered as a whole. Even on that basis, however, I am wholly unable to draw any rational inference that British security services were implicated in the death of the petitioner's son, in the sense of being actively involved in the events that led to the crash of the Mercedes. The majority of the petitioner's averments on this matter relate entirely to surveillance activities, which do not suggest any active involvement in the events leading to the crash. The petitioner's other averments are in my opinion a matter of mere speculation. I cannot see in those averments, even taken together with the averments of surveillance, any arguable case that MI6 or any other of the British security services was involved in the events preceding the crash. For this reason, in addition to that stated in paragraph [30] above, I am of opinion that the petitioner has failed to over any basis on which the Scottish Ministers or the Lord Advocate could be obliged under article 2 of the Convention to investigate the death.Factual basis for claim that life taken by force
[37] Each of the foregoing grounds is sufficient to hold the present petition irrelevant. Counsel for the Lord Advocate further submitted that no material had been placed before the Lord Advocate or the court on the basis of which it was possible to draw a rational inference that the petitioner's son's life had been taken by force. In my opinion it is not necessary for me to deal with this argument, for two reasons. First, for the reasons stated above I am of opinion that a number of distinct and independent grounds exist for concluding that the petition is not well founded in law. It is only in the event that I am wrong on all of these matters that the question of whether the petitioner has stated an arguable case that his son's life was taken by force becomes relevant. Secondly, the Surrey Coroner has announced that he is to conduct an inquest into the death of the petitioner's son, and I do not think it appropriate to deal with matters that might be considered in that inquest unless it is necessary to do so for the purposes of the present decision.
Conclusion
[38] In conclusion, I should mention two further matters that were touched upon in counsel's submissions. The first is the possibility that the relevant coroner in England might decide to hold an inquest into the death of the petitioner's son. Counsel addressed me on the scope of a coroner's inquest, and whether such an investigation was capable of satisfying any duty imposed by article 2 of the Convention. Since the hearing the Surrey Coroner has announced that he is to hold an inquest into the death of the petitioner's son. I do not think that it is either necessary or appropriate for me to express a view on whether such an inquest may be capable of fulfilling the duty to investigate imposed by article 2. For the reasons set out above, I am of opinion that there is no obligation under the Convention on any authority in the United Kingdom, whether in Scotland or in England, to investigate the death of the petitioner's son. [39] The second additional matter dealt with in counsel's submissions was an argument presented on behalf of the Advocate General that section 57(2) of the Scotland Act 1998 extended only to acts of members of the Scottish Executive, and not to the failure of a member of the Scottish Executive to act. Section 57(2) is in the following terms:"A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law".
In the present case, it was argued, the petitioner in his pleadings founded on section 57(2) as one of the sources of the Lord Advocate's duty to initiate an inquiry into the death of the petitioner's son. The complaint made about the conduct of the Lord Advocate, however, was that he had failed to instruct an inquiry into the death. That amounted to a failure to act, which, it was said, did not fall within the prohibition in section 57(2). In support of that argument, counsel for the Advocate General cited HM Advocate v R, 2003 SLT 4, where in the Privy Council Lords Hope and Rodger expressed the view, obiter, that the term "act" in section 57(2) did not include a failure to act. A contrast was drawn with other provisions of the Scotland Act, notably sections 52(4) and 100(4)(b) and paragraph 1(e) of Schedule 6; each of those provisions made express reference to a failure to act. Consequently the expression "act" dealt only with positive acts of the Lord Advocate. In response, counsel for the petitioner cited the opinions of Lords Sutherland, Coulsfield and Penrose in the Inner House in Clancy v Caird, 2000 SC 441, where it was held that the term "act" in section 57(2) covered a failure to act. In the latter case, it was indicated that once the Human Rights Act 1998 came into force in its own right an act was deemed to include a failure to act, which would avoid the problem in so far as breaches of Convention rights were concerned. Nevertheless, the court considered that there were serious practical difficulties in distinguishing an act from a failure to act, and it was pointed out that the reference to Community law in section 57(2) had no parallel in the Human Rights Act; consequently, a failure by the Scottish Executive to act in accordance with Community law would fall outwith the scope of the legal framework of the Scotland Act unless an "act" were construed as including a failure to act. Clancy v Caird was not cited in HM Advocate v R. I do think that it is necessary for me to express any view on this controversy. I have come to a decision in favour of the general position adopted by the Advocate General on a number of other grounds, and thus any view on this dispute would be plainly obiter. Moreover, the construction of section 57(2) raises difficult issues which are fundamental to the structure of the Scotland Act and where differing views have been expressed by a number of eminent judges. Any further opinion on those issues should be confined to a case where the proper construction of section 57(2) is essential to the decision.
[40] In the whole circumstances of the case I have reached conclusion that the petitioner's case, as set out in the petition, the note of argument and the accompanying productions, does not disclose a relevant case in law. The Scottish Ministers, and the Lord Advocate in particular, are subject to no duty to hold an inquiry into the death of the petitioner's son, and the Lord Advocate's decision not to hold any such inquiry is lawful and compatible with the European Convention on Human Rights. In these circumstances I will sustain the first, second and third pleas in law for the Lord Advocate and the motion for dismissal made on behalf of the Advocate General. I will accordingly dismiss the petition.