Judgments - In re McKerr (AP)
(Respondent) (Northern Ireland)
HOUSE OF LORDS
 UKHL 12
on appeal from:  NICA 1
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
LORD NICHOLLS OF BIRKENHEAD
The application to Strasbourg
The present proceedings
'(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a)in defence of any person from unlawful violence;
(b)in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c)in action lawfully taken for the purpose of quelling riot or insurrection.'
The 'victim' point
An overriding common law right?
'A profound respect for the sanctity of human life underpins the common law as it underpins the jurisprudence under articles 1 and 2 of the Convention. This means that a state must not unlawfully take life and must take appropriate legislative and administrative steps to protect it.'
"136 . . . the scope of the criminal trial was restricted to the criminal responsibility of the three officers. The applicant, relying inter alia on the Minnesota Protocol, argued that the trial was not capable of addressing wider concerns about other aspects of official involvement in the killings. One of these aspects was the deliberate instructions of a senior officer to the suspects to conceal information from the investigating officers, which raised doubts as to what other information or obstruction might have occurred. Another was the fact that there had been two other incidents in Armagh within a month in which police officers from the special mobile support units had used lethal force, killing Michael Tighe on 24 November 1992 and Seamus Grew and Roddy Carroll on 12 December 1992, all of whom had been unarmed. A prosecution had occurred concerning the latter incident and had also resulted in an acquittal. It was alleged that police officers involved in these incidents had similarly been instructed to conceal evidence.
137 The Court considers that there may be circumstances where issues arise that have not, or cannot, be addressed in a criminal trial and that Article 2 may require a wider examination. Serious concerns arose from these three incidents as to whether police counter-terrorism procedures involved an excessive use of force, whether deliberately or as an inevitable by-product of the tactics that were used. The deliberate concealment of evidence also cast doubts on the effectiveness of investigations in uncovering what had occurred. In other words, the aims of reassuring the public and the members of the family as to the lawfulness of the killings had not been met adequately by the criminal trial. In this case therefore, the Court finds that Article 2 required a procedure whereby these elements could be examined and doubts confirmed, or laid to rest. It considers below whether the authorities adequately addressed these concerns."
The court concluded that the concerns had not been adequately addressed and listed the shortcomings of the procedures adopted: para 157. The question whether there had been a policy to kill individuals suspected of subversion activities was unresolved. The court concluded that there had been a violation of the procedural obligation. The court made an award of £10,000 by way of compensation. This sum has been paid.
"We accordingly consider that the appellant's claim is well founded, that there is continuing breach of Article 2(1) which requires to be addressed by the respondent Government. Since, however, the Committee of Ministers has not yet ruled on the proposals made to them by the Government in respect of the four cases heard by the E.Ct.H.R., we would not regard it as appropriate to do more than make a declaration. In these circumstances we propose to allow the appeal and make a declaration that the respondent Government has failed to carry out an investigation which complies with the requirements of Article 2 of the Convention, but not to grant any other relief."
Still resisting any investigation the Government challenges the decision of the Court of Appeal.
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."
The relevant Convention right is Article 2. It provides expressly that everyone's right to life shall be protected by law. By necessary implication it places an independent procedural obligation on the state to investigate promptly and effectively cases where agents of the state cause death by the use of force. The existence of this implied obligation under Article 2 was first spelt out by the E.Ct.H.R. in McCann and Others v The United Kingdom (1995) 21 EHRR 97: for a review of the subsequent European jurisprudence see Lester and Pannick, Human Rights Law and Practice, 2nd ed, 2004, 4.2.31-4.2.39 and Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004, 27-40. In order to have a cause of action under the 1998 Act, Mr McKerr must however have the status of being a "victim" within the meaning of section 7(1).
"(1) … has the Secretary of State acted or failed to act on or after 2 October 2000 in a way which is incompatible with the Respondent's Article 2 Convention rights contrary to Section 6(1) of the Human Rights Act 1998 (the retrospectivity issue)?"
"(2) Does the common law now impose an obligation upon the United Kingdom Government to hold an effective official investigation into the circumstances of the Respondent's father's death irrespective of the Human Rights Act 1998 (the common law issue)?"
Before I consider these legal issues it is necessary to consider a separate and anterior point which, if meritorious, makes it unnecessary to consider these important points of law.
"As regards the applicant's views concerning provision of an effective investigation, the Court has not previously given any indication that a Government should, as a response to such a finding of a breach of Article 2, hold a fresh investigation into the death concerned and has on occasion expressly declined to do so. Nor does it consider it appropriate to do so in the present case. It cannot be assumed in such cases that a future investigation can usefully be carried out or provide any redress, either to the victim's family or by way of providing transparency and accountability to the wider public. The lapse of time, the effect on evidence and the availability of witnesses, may inevitably render such an investigation an unsatisfactory or inconclusive exercise, which fails to establish important facts or put to rest doubts and suspicions. Even in disappearance cases, where it might be argued that more is at stake since the relatives suffer from the ongoing uncertainty about the exact fate of the victim or the location of the body, the Court has refused to issue any declaration that a new investigation should be launched. It rather falls to the Committee of Ministers acting under Article 46 of the Convention to address the issues as to what may practicably be required by way of compliance in each case."
The Attorney-General submitted that in this case an effective enquiry is no longer possible. He submitted that there cannot be a continuing duty to do something when it is impossible to do it. If this premise is right, I would accept that it would be the end of the matter under domestic law. The domestic court, in this case the House of Lords, would not make an order designed to ensure that a plainly useless enquiry is embarked on. This would be a sufficient basis for allowing the appeal of the Government. The question is whether this submission is right. It having been advanced I must deal with it.
" … international law is part of the law of the land. Some rights contained in international human rights treaties are not the produce of inter-State contract, but antedate any such multilateral agreement. The treaty is merely the instrument in which a rule of general international law is repeated. It bears repetition in an international instrument, partly because relatively 'new' rights may also be included, and partly because the treaty may involve procedural undertaking for the States Parties. But none of that changes the character of a given right as an obligation of general international law. Freedom from torture, freedom of religion, free speech, the prohibition of arbitrary detention, should all fall in that category. As such - and even were these rights not already secure through a separate domestic historic provenance - they would be part of the common law by virtue of being rules of general international law."
There is also growing support for the view that human rights treaties enjoy a special status: Murray Hunt, Using Human Rights Law in English Courts, 1998, pp 26-28. Commenting on Lewis v Attorney General of Jamaica  2 AC 50 Mr Justice Collins commented that "it may be a sign that one day the courts will come to the view that it will not infringe the constitutional principle to create an estoppel against the Crown in favour of individuals in human rights cases": Foreign Relations and the Judiciary 2002, 51 ICLQ 485, at 497. That is not to say that the actual decision in the International Tin Council case was wrong. On the contrary, the critics would accept the principled analysis of Kerr LJ in the Court of Appeal that the issue of the liability of member states under international law is justiciable in the national court, and that under international law the member states were not liable for the debts of the international organisation: see Mr Justice Lawrence Collins, op cit, at 497.
"It is true that the House has a power to develop the law. But it is a limited power. And it can be exercised only in the gaps left by Parliament. It is impermissible for the House to develop the law in a direction which is contrary to the expressed will of Parliament."
Before embarking on such a course the House would have to take into account that, by and large, the law regarding inquests has been developed in Northern Ireland by statute: see Leckey and Greer, Coroner's Law and Practice in Northern Ireland, 1998, passim. Moreover, the House would have to confront another difficulty. It must be sound principle for a supreme court to develop the law only when it has been demonstrated that the just disposal of cases compellingly requires it. Given that the right to life is comprehensively protected under Article 2 of the Convention as incorporated in our law by the 1998 Act, why is there now a need to create a parallel right to life under the common law? Given that the procedural obligation under Article 2 is comprehensively protected under our law, as held by the House of Lords in R (Amin) v Secretary of State of the Home Department  3 WLR 1169, why is there now a need to create a parallel right under the common law?
"First, that treaties may generate rules of customary international law: the accepted view that unenacted treaties 'cannot be a source of rights and obligations' in England is thus effectively sidestepped, since it is not the treaty itself which is the source of rights. Second, that the numerous human rights treaties and other instruments, of which the European Convention is but one, have given or, at least, may give rise to rules of customary international human rights law. Third, that customary international law forms part of the common law of England. If these three be accepted, it follows that, to the extent that the content of any right encompassed in the European Convention is the same as its content in customary international law, the right in question will be recognised in English law as a part thereof."
Along these lines there may be an argument that the right to life has long been recognised in customary international law, which in the absence of a contrary statute has been part of English law since before the 1998 Act came into force. One has to remember, however, that the procedural obligation recognised in McCann only dates from 1995, i.e. thirteen years after the deceased was shot and after the inquest in Northern Ireland was closed. It may be unrealistic to suggest that the procedural obligation was already part of customary international law at a time material to these proceedings. The point has not been in issue in the present case. It has not been researched, and it was not the subject of adversarial argument. It may have to be considered in a future case. The impact of evolving customary international law on our domestic legal system is a subject of increasing importance.
"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."
"The [Home Secretary] came under an obligation pursuant to articles 2 and 3 of the Convention to set up an effective official investigation. [He] never discharged that obligation. [His] breach of that obligation was not actionable in the English courts before 2 October 2000… Can the claimants now claim any remedy pursuant to sections 6, 7 and 8 of the Act for the continuing breach of articles 2 and 3 since 2 October 2000?"
LORD RODGER OF EARLSFERRY
LORD BROWN OF EATON-UNDER-HEYWOOD
"[T]he Court has found that the national authorities failed in their obligation to carry out a prompt and effective investigation into the circumstances of the death. The applicant must thereby have suffered feelings of frustration, distress and anxiety. The Court considers that the applicant sustained some non-pecuniary damage which is not sufficiently compensated by the finding of a violation as a result of the Convention."
"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."