Re McCaughey and Quinn's Application [High Court of Northern Ireland; WEA7627]
| Jurisdiction | Northern Ireland |
| Judgment Date | 23 September 2009 |
| Date | 23 September 2009 |
| Court | Queen's Bench Division (Northern Ireland) |
[2009] NIQB 77
High Court of Northern Ireland; WEA7627
Weatherup J
Ms Quinlivan for the applicant; Mr Doran for the respondent coroner; Dr McGleenan for the notice party, the Police Service of Northern Ireland.
Whether there was a freestanding procedural aspect of Art 2 requiring Art 2 compliant inquests in respect of deaths occurring before commencement of the Human Rights Act 1998.
The applicants sought permission to judicially review a decision of the coroner in relation to inquests yet to be held into the deaths of two people in 1990 at the hands of members of the security forces, seeking to rely on the right to life under Art 2 ECHR and the procedural requirement for a prompt investigation, on a claim for entitlement to an Art 2 compliant inquest and on r3 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 and the requirement to hold an inquest as soon as possible. It was contended that the decision of the ECtHR in Å ilih v SloveniaIQLR[2009] Inquest Law Reports 117 changed the position established by the House of Lords in re McKerrIQLR[2004] Inquest Law Reports 35 that Art 2 did not have retrospective effect in relation to deaths that occurred before the commencement of the Human Rights Act on 2 October 2000 so that the procedural aspect of Art 2 did not apply to a death occurring before that date. The respondent contended that Å ilih addressed the temporal jurisdiction of the ECtHR on ratification of the Convention and did not affect the decision of the House of Lords in McKerr.
1. This is an application for leave to apply for judicial review of a decision of the coroner in relation to the inquests yet to be held into the deaths in 1990 of Martin McCaughey and Dessie Grew at the hands of members of the security forces. Ms Quinlivan appears for the applicant, Mr Doran for the respondent, the coroner and Dr McGleenan for the notice party, the Police Service of Northern Ireland.
2. The grounds for judicial review rely in the first place on the right to life under Art 2 of the European Convention on Human Rights and the procedural requirement for prompt investigation, secondly on a claim for entitlement to what is described as an Art 2 compliant inquest and thirdly on r3 of the Coroners (Practice and Procedure) Rules (Northern Ireland) 1963 as amended and the requirement to hold an inquest as soon as practicable.
3. First of all the Art 2 grounds. The right to life protected under Art 2 comprises two aspects namely the substantive aspect and the procedural aspect, the latter including a prompt and effective investigation and an inquest that complies with the requirements of the European Court of Human Rights. The House of Lords decided in Re McKerrWLR[2004] 1 WLR 807, [2004] Inquest Law Reports 35, that Art 2 does not have retrospective effect in relation to deaths that occurred before the commencement of the Human Rights Act on 2 October 2000. The House of Lords found that the substantive and the procedural aspects of Art 2 were not severable and that a death occurring before the commencement of the Human Rights Act 1998 could not attract the procedural requirements of Art 2 after that date. There was found to be no freestanding procedural right in respect of deaths that arose prior to 2 October 2000. Accordingly where the death occurred prior to that date, as in the present cases, the procedural aspect of Art 2 did not apply.
4. The applicants contend that the position has changed as a result of a decision of the Grand Chamber of the European Court of Human Rights in Silih v Slovenia on 9 April 2009 ([2009] Inquest Law Reports 117). Slovenia ratified the European Convention on Human Rights on 28 June 1994. The death in question occurred on 19 May 1993 during the course of medical treatment of the deceased. It is therefore apparent that the death occurred before the Convention had effect in Slovenia. A conclusion as to whether the European Court of...
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