An application by Rosaleen Dalton for Judicial Review (Northern Ireland)

Lord Reed:

1. In these proceedings, Ms Dalton challenges the decision of the Attorney General for Northern Ireland, not to order a further inquest into the death of her father, who died on 31 August 1988 when he unknowingly detonated a bomb which had been placed in his neighbour's house by the IRA with the intention of killing members of the security forces. The Attorney General's decision is challenged on the basis that it is incompatible with the state's procedural obligation to investigate deaths that have occurred in circumstances which potentially engage the state's responsibility, under Art 2 of the European Convention on Human Rights (“the Convention”), as implemented in our domestic law by the Human Rights Act 1998. In response, the Attorney General argues in the first place that the Act does not impose any procedural obligation to investigate deaths which occurred more than 12 years before it came into force on 2 October 2000 (“the commencement date”), absent exceptional circumstances which are not present in this case.

2. Applying the decisions of this court in In re Finucane[2019] UKSC 7, [2019] NI 292, [2019] Inquest LR 71 (“Finucane”) and In re McQuillan[2021] UKSC 55, [2022] AC 1063, [2021] Inquest LR 194 (“McQuillan”), it is clear that the Attorney General's contention is correct. As explained below, it was held in Finucane that the procedural obligation to investigate deaths under Art 2, as given effect in our domestic law by the Human Rights Act, does not apply to deaths which occurred before the commencement date unless either there was a “genuine connection” between the death and the commencement date, or the “Convention values” test was satisfied (both the genuine connection test and the Convention values test are explained below). In McQuillan, the court held that the genuine connection test could not normally be met where the death occurred more than ten years before the commencement date, but that a period of up to 12 years was permissible in specified circumstances. Mr Dalton's death not only occurred more than ten years before the commencement date: it also falls outside the maximum period of 12 years permissible in the circumstances described in McQuillan. It is (rightly) not suggested that the case is one where the Convention values test is met. There is therefore no procedural obligation under Art 2, as given effect in our domestic law, to investigate Mr Dalton's death. It follows that the Attorney General's appeal against the contrary decision of the Court of Appeal of Northern Ireland (which pre-dated the judgment in McQuillan) must be allowed.

3. That, however, is not the end of the appeal in relation to this issue. Lord Hodge, Lord Sales and Lady Rose consider that the reasoning in Finucane is erroneous, since it failed to apply the strict and absolute ten-year limit which, they say, was adopted by the Grand Chamber of the European Court of Human Rights in Janowiec v Russia App Nos 55508/07 and 29520/09, (2013) 58 EHRR 30 (“Janowiec”). In their view, that absolute limit should have been adopted in Finucane in accordance with the “mirror principle”, explained below, which they consider to apply in this context. By the same token, Lord Hodge, Lord Sales and Lady Rose are implicitly critical of the reasoning in McQuillan, in so far as it accommodated the result of Finucane and failed to apply a strict ten-year limit.

4. As explained below, I do not consider that the approach adopted by the European court is as inflexible as Lord Hodge, Lord Sales and Lady Rose believe. Nor do I consider that the “mirror principle” applies in this context. Accordingly, I am not persuaded that the decision in Finucane was wrong. Nor am I persuaded that the decision in McQuillan to accept claims after a lapse of more than ten years in the specified circumstances was wrong, notwithstanding that it was influenced by the desire to accommodate the precedent established by the court's previous decision in Finucane, rather than having a specific basis in the case law of the European court.

5. Furthermore, in order to adopt the approach which Lord Hodge, Lord Sales and Lady Rose would in principle favour, the court would have to invoke the Practice Statement issued by the House of Lords in 1966 (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234), and depart from its decision in Finucane as qualified in McQuillan, the latter being a unanimous decision made by an enlarged court of seven justices less than two years ago. Lord Hodge, Lord Sales and Lady Rose have ultimately drawn back from advocating that step. They are right to have done so. As a general rule the court will be “very circumspect” before accepting an invitation to invoke the Practice Statement: Knauer v Ministry of Justice[2016] UKSC 9, [2016] AC 908, para 23. That is because it is “important not to undermine the role of precedent and the certainty which it promotes”: Henderson v Dorset Healthcare University NHS Foundation Trust[2020] UKSC 43, [2021] AC 563, [2022] MHLR 228, para 87. In the circumstances of the present case, a number of factors give powerful support to that approach. They can be summarised in three propositions:

(1) it is unnecessary to decide the point in order to decide the present case;

(2) the earlier decisions are in my view correctly decided and, to say the least, not clearly wrong; and

(3) departing from the earlier decisions would have a damaging impact on legal certainty in circumstances where maintaining a clear and consistent approach is particularly important.

6. In this judgment, I shall explain first why I consider that Finucane was correctly decided, and why I also agree with the explanation given in McQuillan of the circumstances in which a period of ten years might be exceeded. In the course of doing so, I shall also explain why I am not persuaded that the approach adopted by the European court is as inflexible as Lord Hodge, Lord Sales and Lady Rose believe, and why I consider that domestic courts need not in any event follow the approach adopted by the European court in this context. I shall then explain why, in any event, it would be inappropriate for this court to depart from the earlier decisions.

7. The critical question concerns the temporal application of the procedural obligation to investigate deaths that have occurred in circumstances which potentially engage the responsibility of the state, imposed by Art 2 of the Convention, as implemented in our domestic legal system by the Human Rights Act. In considering that issue, it is convenient to examine first the development of the case law of the European court in relation to a different question, namely the extent of its temporal jurisdiction under the Convention, before turning to the issue which arises in our domestic law and the criticisms made of Finucane and McQuillan.

8. Where a death occurs before the date when the state in question acceded to the Convention (or, if later, the date when it recognised the right of individual petition: Chong v United Kingdom App No 29753/16, (2018) 68 EHRR SE2, complaints that the state has failed to comply with its substantive obligations under Art 2 (either its negative obligation not to take life, or its positive obligation to safeguard life) will fall outside the European court's temporal jurisdiction, or jurisdiction ratione temporis, as the court describes it. That much has always been clear.

9. What has been less clear is the scope of the European court's temporal jurisdiction in respect of complaints that the state has failed to comply with its procedural obligation under Art 2 to investigate deaths that have occurred in circumstances which potentially engage its responsibility. That is a subject on which the European court's approach has developed over time.

10. In the early cases, the court proceeded on the basis that its temporal jurisdiction in respect of complaints of a breach of the procedural obligation only extended to deaths which occurred after the critical date (ie the date of accession to the Convention, or of recognition of the right of individual petition, as the case might be): see, for...