Mohamed Moneim Ali Fayed For Judicial Review Of A Decision Of The Lord Advocate To Refuse To Instruct A Public Inquiry Into The Death Of Emad Al Fayed
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Date | 12 March 2004 |
| Docket Number | P905/03 |
| Court | Court of Session |
| Published date | 12 March 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P905/03
| 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".
[2] The petitioner has raised proceedings for judicial review of the foregoing decision of the Lord Advocate, in which he seeks reduction of the decision. The petitioner submits that the Lord Advocate's decision is wrong in law, and is in particular incompatible with article 2 of the European Convention on Human Rights. That article, which is headed "Right to life", states that "Everyone's right to life shall be protected by law". In summary, the petitioner's claim is as follows.
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...
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