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IN THE
SUPREME COURT
ON APPEAL
FROM HER MAJESTY'S COURT OF APPEAL
IN NORTHERN
IRELAND
IN THE
MATTER OF AN APPLICATION BY
BRIGID
McCAUGHEY AND LETITIA QUINN
FOR
JUDICIAL REVIEW
BETWEEN:
BRIGID
McCAUGHEY
AND
LETITIA QUINN
APPELLANTS
AND
HER MAJESTY’S
SENIOR CORONER FOR NORTHERN IRELAND
AND
HER MAJESTY’S
CORONER
AND
CHIEF
CONSTABLE FOR THE POLICE SERVICE NORTHERN IRELAND
RESPONDENT
____________________
STATEMENT OF FACTS AND
ISSUES
____________________
Headnote:
Appeal from decision of Court of Appeal dismissing application for judicial
review of decisions of Senior Coroner and Coroner; Grand Chamber in Silih v
Slovenia ruled that Article 2 procedural obligation detachable from substantive
obligation; impact of decision in Silih where death pre-dates the coming into
operation of the Human Rights Act but the Inquest post-dates the coming into
operation of the Act; whether Appellants entitled to rely on their Article 2
procedural rights in Inquest.
Decision: Leave for judicial review granted, Application dismissed.
Time occupied in the Courts Below:
High
Court – 1 day
Court
of Appeal – 2 days
1.
FACTS
1.
The Appellants
are the next of kin of the deceased, Martin McCaughey and Dessie Grew, who were
shot and killed by members of the British Army on the 9th October
1990. The shooting of the Deceased was
one of a series of shootings which gave rise to an allegation of a shoot-to-kill
policy on the part of the security forces in Northern Ireland.
2.
Despite the significant time that has passed since the death, no Inquest has yet
been held. The deceased were shot
and killed
in 1990 but the RUC did not provide papers to the then Coroner until 1994. Those papers were incomplete since
they omitted statements from the soldiers who committed the killings. These further statements were not
provided to the Coroner until April 2002.
In June 2002 the solicitors representing the next of kin of the deceased wrote
to the Coroner enquiring as to when the Inquest was to be held and raising
issues in relation to pre-inquest disclosure.
A Preliminary Hearing was held on the 31st January 2003. The Police Service Northern Ireland
refused to provide the Coroner with disclosure of all documents held by them
concerning the death this decision was challenged by the next of kin. No further hearings were held
pending the outcome of that challenge.
Those proceedings took four years and concluded with the House of Lords
judgment in Re Jordan’s v Lord Chancellor
& Ano’r in March 2007.
3.
Subsequent to the decision of the House of Lords, the Appellants’
solicitors wrote on a number of occasions to both, Her Majesty’s Senior Coroner
in Northern Ireland, and thereafter to the Coroner assigned to hear the Inquest
inviting them to convene a Preliminary Hearing in order to progress the hearing
of the Inquest.
4.
The Senior Coroner did not assign the Inquest to a Coroner until after
the Appellants’ solicitors issued a letter before action on the 17th
December 2008. The Coroner assigned
to hear the Inquest did not convene a preliminary hearing until after the
Appellants’ solicitors issued a further
letter before action on the 25th June 2009 threatening judicial
review proceedings because of the continuing delay. A preliminary hearing then took
place on the 14th September 2009. Further
Preliminary Hearings were held on the 12th October 2009, the 1st
December 2009, the 22nd January 2010 and the 2nd February
2010.
5.
It is moreover apparent from the correspondence received from the
Coroner’s Service that the Police Service for Northern Ireland did not comply
with their obligation under section 8 of the Coroner’s Act (Northern Ireland)
1959 to provide the Coroner with disclosure of all documentation concerning the
death until the 4th August 2009.
6.
At the Preliminary Hearing held on the 14th September 2009 the Appellants invited the Coroner
to hold an Article 2 compliant Inquest into the deaths, reliance was placed upon
the decision of the Grand Chamber in
Silih v Slovenia [2009] ECHR 571.
The Coroner ruled that he was bound by the decisions of the House of
Lords in Re McKerr’s Application
[2004] 1 WLR 807, Jordan v Lord
Chancellor & Ano’r [2007] 2 WLR 754 and
R v Commissioner of Police for the
Metropolis, ex parte Hurst [2007]
2 WLR 726 and that he could not hold an Article 2 compliant Inquest, although he
indicated that the Inquest would be as transparent as possible.
7.
Subsequently, the Appellants’ legal representatives have received
disclosure of documentation from the Police Service Northern Ireland concerning
the deaths. These documents have
been redacted pending the determination of issues in relation to public interest
immunity and/or Article 2 issues.
8.
At the hearing on the 1st December 2009 the Coroner issued a
preliminary view as to the proposed scope of the Inquest and invited the
Interested Parties to make representations.
The Coroner’s preliminary view was that he should inquire into the
planning and control of the operation leading to the deaths of the deceased. The Appellants made representations
to the effect that the scope 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 Northern Ireland and the Ministry of Defence, who are also
represented at the Inquest, made written submissions to the effect that the
Coroner was precluded from investigating the planning and control of the
operation which led to the deceased’s death.
Reliance was placed by the Police Service Northern Ireland and the
Ministry of Defence on a decision of the Northern Ireland High Court,
Siberry’s Application (No. 2)
[2008] NIQB 147. The Coroner has not yet reached a
final determination as to the scope of the Inquest.
History of Proceedings
9.
On the 11th August 2009 the Appellants lodged proceedings
applying for leave to judicially review Her Majesty’s Senior Coroner for
Northern Ireland and the Coroner seized with hearing the Inquest. Proceedings were lodged against the
Chief Constable of the Police Service for Northern Ireland on the 16th
September.
10.
The Appellants’ claim was essentially two-fold:
i)
that the Coroner had violated the Appellants’ Article 2 rights in view of
their delay in progressing the Inquest, particularly since the decision of the
House of Lords in this case in March 2007; and,
ii)
that the Coroner was obliged to conduct an Article 2 compliant Inquest.
11.
Weatherup J heard both applications for leave on the 18th
September 2009, and on the 23rd September 2009 he in large part
dismissed the application, holding that:
i)
In relation to the delay, the Appellants could rely upon Rule 3 of the
Coroner’s Rules.
ii)
Following the House of
Lords judgment in Kay& O’rs v
London Borough of Lambeth & O’rs [2006] 2 WLR 570 he was bound to follow the
decision of the House of Lords in
McKerr’s Application even if it conflicted with an authority of the European
Court of Human Rights.
iii)
Accordingly, the Coroner was obliged to follow the ruling of the House of
Lords’ in McKerr’s Application, such that Article 2 did not apply to the inquest
because the deaths pre-dated the coming into force of the HRA.
12.
The Appellants appealed the refusal of leave for judicial review on grounds (ii)
and (iii) and the Court of Appeal heard the appeal on the 8th
February 2010.
13.
On the 26th March 2010, the Court of Appeal overturned the
ruling of Weatherup J and held that:
i)
In light of their obligation under section 2 of the HRA to “take into
account” a judgment of the European Court of Human Rights the Court should have
regard to the decision in Silih v
Slovenia which appeared to conflict with
McKerr’s Application inasmuch as it
determined that the procedural obligation to investigate was a “detachable”
obligation.
ii)
The Appellants had an arguable case that because the procedural
obligation to investigate was “detachable”, the inquest had to comply with the
investigatory requirements of
Article 2 rights since it was to take place
after
the coming into force of the HRA albeit that the death occurred prior to that
date.
iii)
Accordingly, it was appropriate to grant the Appellants leave to
judicially review the Coroner’s
decision that Article 2 did not apply to the inquest.
iv)
That McKerr’s Application was
binding on the Court of Appeal and that, whilst leave would be granted, the
Appellants’ substantive application would be dismissed.
14.
Following a hearing on the 26th March 2010, the Court of
Appeal granted leave to appeal to the Supreme Court. The Court of Appeal’s decision was
influenced by the fact that there were 16 Inquests pending that, according to
the European Court of Human Right’s judgment in
Silih v Slovenia, would have to be
carried out in a way that complied with the investigatory obligation in Article
2.
ISSUES IN THE APPEAL
15.
In Silih v Slovenia the Grand
Chamber overturned its earlier decision in
Blecic v Croatia (2006) 43 EHRR 48
and ruled that:
“the procedural obligation to carry out an effective investigation under Article
2 has evolved
into a separate and autonomous duty.
Although it is triggered by the acts concerning the substantive aspects
of Article 2 it can give rise to a finding of a separate and independent
“interference” . . . In this sense it can be considered
a
detachable obligation
arising out of Article 2 capable of binding the State even when the death took
place before the critical date.” [Emphasis added]
16.
At the time that the House of Lords reached its decisions in
McKerr’s Application and in
(R)Hurst v Commissioner of Police for the
Metropolis the approach of the Grand Chamber to the Article 2 procedural
obligation was the same as that taken by the House of Lords inasmuch as it was
not regarded as “detachable” from the substantive right. In light of the decision in
Silih v Slovenia the central issue in
the appeal is:
·
Whether an inquest into a death that took place before the HRA came into force,
which would have had to comply with Article 2 of the Convention had the death
taken place after the HRA came into
force, must nevertheless comply with the procedural obligations in Article 2 if
held after the HRA came into force.
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