Re McCaughey and another
 UKSC 20
THE SUPREME COURT
On appeal from:  NICA 10
Lord Phillips, President
Lord Hope, Deputy President
and another for Judicial Review (Northern Ireland)
(Instructed by Madden & Finucane)
Frank O'Donoghue QC
Sean Doran BL
(Instructed by Coroner's Service for Northern Ireland)
Paul Maguire QC
Dr Tony McGleenan BL
(Instructed by Instructed by Crown Solicitor's Office)
Rabinder Singh QC
Fiona Doherty BL
(Instructed by Northern Ireland Human Rights Commission and Equality and Human Rights Commission)
John Larkin QC
David Scoffield BL
(Attorney General for Northern Ireland)
These appeals require the Court to consider once again the impact of article 2 of the European Convention on Human Rights ("the Convention") on the scope of an inquest. They arise because of a change that the Grand Chamber of the Strasbourg Court has made as to the nature of the obligations imposed by article 2. I shall start by describing briefly the nature of that change.
The Convention is a living instrument and over time the Strasbourg Court has extended the ambit of application of Convention rights in many areas. Article 2 provides a good example of this tendency. Article 2 provides that
"(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."
In the Strasbourg Court held that article 2 by implication gave rise not merely to a substantive obligation on the state not to kill people but, where there was an issue as to whether the state had broken this obligation, a procedural obligation on the state to carry out an effective official investigation into the circumstances of the deaths ("the procedural obligation").
Romania acceded to the Convention on 20 June 1994. In 1993 a pogrom had taken place in a Roma village, resulting in a number of deaths and widespread destruction of property. The State, in the form of the local police, was alleged to have been implicated. Investigations into the pogrom, and proceedings arising out of it commenced in 1993 but continued up to 2000. In (Application Nos 41138/98 and 64320/01) (unreported) 13 March 2001 the applicants sought to invoke the procedural obligation under article 2, and a parallel obligation arising under article 3, alleging various deficiencies in the investigations. The Court held that the Convention only applied with respect to Romania after the date of its accession; it did not apply to Romania at the time of the pogrom. Because the procedural obligation to conduct an effective investigation was "derived from" the killings and the destruction of property, whose compatibility with the Convention could not be examined by the Court, it followed that the complaint of breach of the procedural obligations was also incompatible ratione temporis with the provisions of the Convention and had to be rejected.
This reasoning was followed by the Court, when reaching similar decisions, in (Application No 21501/02) (unreported) 8 December 2005 and (Application No 30651/05) (unreported) 14 September 2006.
The issue that the Strasbourg Court considered in these cases was echoed by an issue that arose in this jurisdiction in relation to the application of the Human Rights Act 1998 (" HRA"). In a series of decisions the House of Lords had decided that no claim lay in respect of an alleged breach of the Convention if the facts giving rise to the alleged breach predated the entry into force of the HRA. The issue then arose of whether the procedural obligation to investigate a death applied after the HRA had come into force in relation to a death that had occurred before the Act came into force. In In re McKerr ; the House of Lords held that it did not. Their reasoning also echoed that of the Strasbourg Court. Because the death occurred before the HRA came into force it was not within the reach of the Act. Because the obligation to hold an investigation was triggered by the death, that consequential obligation was not within the reach of the Act either. This decision was applied by the House of Lords in ; and ; .
In 2009 the Grand Chamber of the Strasbourg Court took a decision which departed from the reasoning in Moldovan, Voroshilov and Kholodov and further extended the effect of article 2. In the Court ruled that article 2 imposed, in certain circumstances, a freestanding obligation in relation to the investigation of a death which applied even where the death itself had occurred before the member state ratified the Convention.
The appellants contend that the decision in Šilih has destroyed the basis of the decision of the House of Lords in McKerr. Henceforth, if an inquest is held into a death that predated the coming into force of the HRA there is none the less an obligation under the HRA to ensure that it complies with the requirements of article 2. As the HRA came into force on 2 October 2000 it might be thought that this issue is of no great moment. Such a conclusion would be wrong. These appeals relate to two of a significant number of deaths that occurred in Northern Ireland well before 2 October 2000 in respect of which inquests are still pending.
The appellants are the next of kin of Martin McCaughey and Dessie Grew who were shot and killed by members of the British Army on 9 October 1990. Allegations have been made that they were victims of a shoot-to-kill policy. I need not go into the reasons why it is that, despite the fact that they died so long ago, no inquest has yet been held into their deaths, for on these appeals no issue arises in respect of this delay. A Coroner has been assigned to the case, and on 14 September 2009 he held a preliminary hearing. At that hearing the appellants applied to the Coroner for a ruling that he would hold an inquest into the two deaths that complied with the requirements of article 2. The Coroner declined to give such a ruling. He indicated, however, that he intended to hold a vigorous, thorough and transparent inquest.
Following a further hearing, on 1 December 2009 the Coroner issued the following "preliminary definition" of the scope of the inquest that he proposed to hold:
"The Coroner will consider the four basic factual questions concerning: (a) the identity of the deceased; (b) the place of death; (c) the time of death; and (d) how the deceased came by their deaths.
Further, related to the 'how' question, the Coroner will examine in evidence the surveillance operation that culminated in the deaths with reference in particular to the following: (i) the purpose of the operation; (ii) the planning of the operation; (iii) the actions of those involved in the operation; (iv) the state of knowledge of those involved in the operation; (v) the nature and degree of the force used in the operation. In considering this matter, the Coroner will also examine such evidence as exists concerning the circumstances in which the deceased came to be at the locus of death at the relevant time."
He stated that this was only preliminary and might be subject to revision at any time. He invited written representations from the parties in relation to it.
The appellants made representations to the Coroner to the effect that the scope of the inquest should cover the question of whether the operation was planned and controlled so as to minimise to the greatest extent possible recourse to lethal force. The Police Service of Northern Ireland and the Ministry of Defence made written representations which asserted that the Coroner was precluded from investigating the planning and control of the operation. They asserted that McKerr established that there was no requirement for the inquest to comply with article 2. It followed that the scope of the inquest was restricted to establishing "by what means" rather than "in what broad circumstances" the deceased came to their deaths, ie a Jamieson inquest: see .
The Coroner has not yet made any ruling in relation to these representations. He is, no doubt, wisely awaiting the outcome of these proceedings. It is by no means clear that, even if this Court rules that article 2 has no application to these inquests, the Coroner will not be able lawfully to conduct an inquest which satisfies the requirements of that article or that he will not do so: see the speech of Lord Bingham of Cornhill in Jordan and my comments at para 69 in ; . What is clear is that a decision of this Court is needed to prevent the delay and expense involved in interlocutory in-fighting in this and future inquests raising the same issue.
The proceedings below
In an application for permission to apply for judicial review the appellants sought to persuade Weatherup J that they were entitled to a declaration that the Coroner was obliged to conduct the inquest in a way that satisfied the procedural obligation of article 2. They argued that he was not bound by McKerr because the subsequent decision of the Grand Chamber in Šilih was inconsistent with it. Weatherup J held that whether or not Šilih was inconsistent with McKerr, he was obliged...
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