Mandating Public Inquiries to Fulfill Article 2 ECHR Obligations: Brown v SOSNI ([2025] NICA 16) Commentary

1. Introduction

Brown v Secretary of State for Northern Ireland ([2025] NICA 16) arises from a quarter‐century failure to conduct an Article 2‐compliant investigation into the 1997 murder of Sean Brown. The appellant, SOSNI, refused to establish a public inquiry despite a High Court coroner’s finding that only a public inquiry could effectively handle sensitive intelligence material. Bridie Brown (the respondent and next of kin), supported by the coroner, the PSNI Chief Constable, and judicial authorities, sought judicial review. The core issues are:

Whether SOSNI lawfully refused to exercise his discretion under section 1 of the Inquiries Act 2005 to order a public inquiry.
Whether a public inquiry is the sole viable means, at this stage, to satisfy the procedural limb of Article 2 ECHR.
What form of remedy—declaration, mandamus, or both—is appropriate.

2. Summary of the Judgment

Delivered by Keegan LCJ, the Court of Appeal unanimously held that SOSNI’s refusal was unlawful and in breach of Article 2. It found that:

The only currently available mechanism with the statutory powers to examine sensitive material is a public inquiry under the Inquiries Act 2005.
The alternative (ICRIR’s Enhanced Inquisitorial Proceedings) lacks legislative force, closed‐material safeguards, defined resources and timescales, and is not yet Article 2‐compliant.
Civil service advice relied on speculative cost and “floodgates” arguments without evidence and failed to account for the advanced state of the aborted inquest.
In these exceptional facts—where intelligence disclosed that state agents were involved in the murder—only a public inquiry could deliver the prompt, independent, publicly scrutinized, and family‐involved investigation required by Article 2.

The court upheld the High Court’s finding of unlawfulness, issued a binding declaration of Article 2 non-compliance, and adjourned the matter four weeks to allow SOSNI to commit to an inquiry framework before considering mandamus.

3. Analysis

3.1 Precedents Cited

Amin v Secretary of State for the Home Department [2003] UKHL 51 – House of Lords restored a first-instance declaration requiring a public inquiry to satisfy Article 2, emphasising minimum ECHR investigative standards.
Jordan v United Kingdom (2003) 37 EHRR 2 – ECtHR delineated core requirements of an Article 2 investigation (promptness, independence, public scrutiny, family involvement).
Litvinenko [2014] EWHC 194(Admin) – refusal of statutory inquiry quashed for irrational “wait and see” approach; highlighted broad ministerial discretion but stressed Article 2 compliance.
Finucane [2019] UKSC 7 – UKSC held state failed to satisfy Article 2; declined mandamus but issued a declaration, recognising ministerial discretion.
Imam v Croydon LBC [2023] UKSC 45 – established principles on mandatory orders in public law: clarity of duty, rarity when discretion exists, separation of powers concerns.

3.2 Legal Reasoning

The court applied Article 2’s procedural limb: investigations must be state-initiated, prompt, effective, independent, publicly scrutinised, and involve next of kin. It then assessed available modalities:

Inquest – collapsed for lack of closed-material procedure.
ICRIR – lacking statutory underpinning, clear timescales, representation protocols, and closed-material safeguards; currently not Article 2-compliant.
Public Inquiry under the Inquiries Act 2005 – possesses built-in closed-material procedures, public hearings, witness compulsion, defined terms of reference, and family representation.

SOSNI’s reliance on civil service advice was critically examined. The advice:

Presented untested assumptions about cost burdens and “floodgate” effects.
Ignored that much of the inquest groundwork (scope, evidence, coroner’s review) was complete, reducing incremental cost and delay.
Over-weighted agency preferences (MOD, MI5) without evidential foundation.
Failed to consider a bespoke inquiry building on Kinney J’s scope, terms of reference, and closed-material needs.

Given no other mechanism legally available, the court found SOSNI’s refusal unlawful. It granted a declaration of Article 2 violation, adjourning four weeks for SOSNI to decide on an inquiry structure, preserving constitutional separation but ensuring compliance.

3.3 Impact

Brown establishes an important precedent:

It confirms that where statutory powers exist to convene a public inquiry fulfilling Article 2, refusal without evidence-based justification is unlawful.
It delineates the limits of ministerial discretion in legacy-investigation contexts where fundamental rights and decades of delay collide.
It signals courts will scrutinise cost and “floodgate” rationales that are speculative and ignore existing investigative work.
It underscores the need for robust closed-material procedures in any legacy forum—be it inquests, ICRIR, or inquiries.
It may prompt governments to prioritize full, prompt Article 2 compliance rather than incremental legislative reforms with uncertain timetables.

4. Complex Concepts Simplified

Article 2 Procedural Obligation: The duty for the state to conduct an effective, independent investigation into deaths where state agents are implicated, ensuring transparency and next-of-kin involvement.
Closed Material Procedure (CMP): A legal mechanism allowing sensitive material to be adduced in private before a judge or inquiry chairman, with “special advocates” representing public or family interests.
Mandamus: A court’s discretionary order compelling a public body to perform a clear legal duty—used sparingly, especially where discretion exists, unless only one lawful option remains.
Declaration: A formal judicial pronouncement that an act or omission is unlawful or incompatible with rights, without yet ordering a specific remedy, often prompting executive compliance.

5. Conclusion

Brown v SOSNI crystallises the principle that where Article 2 rights and decades of investigative failure intersect, and where the statute already provides a mechanism (public inquiry) with the requisite powers to handle sensitive material, refusal to convene that mechanism is unlawful. The case balances respect for ministerial discretion with the rule of law’s demand for effective remedies. It affirms that governments cannot indefinitely delay compliance through speculative reforms or reliance on nascent, non-statutory bodies. Instead, they must deploy existing, legally sanctioned processes to secure the truth, satisfy victims’ families, and restore public confidence in the state’s commitment to human rights.