Introduction

McCaughey & Anor, Re Application for Judicial Review ([2011] 3 All ER 607) is a landmark judgment delivered by the United Kingdom Supreme Court on May 18, 2011. This case addresses the intersection of domestic law, specifically the Human Rights Act 1998 (HRA), and the obligations imposed by Article 2 of the European Convention on Human Rights (ECHR). The appellants, next of kin to Martin McCaughey and Dessie Grew, sought judicial review concerning the scope and procedural requirements of inquests into their pre-HRA deaths, especially in light of the European Court of Human Rights' (Strasbourg Court) decision in ilih v Slovenia (2009).

The core issue revolves around whether the procedural obligations under Article 2, as redefined by the Strasbourg Court in ilih v Slovenia, impose a duty on UK public authorities to conduct Article 2-compliant inquests into deaths that occurred before the HRA came into force on October 2, 2000.

Summary of the Judgment

The Supreme Court granted the appeals, overturning the earlier House of Lords decision in In re McKerr ([2004] 1 WLR 807). The key holding was that, following the Strasbourg Court's decision in ilih v Slovenia, the procedural obligations under Article 2 can be interpreted as separate and autonomous from the substantive obligation to protect life. Consequently, UK public authorities are required to ensure that inquests into pre-HRA deaths, when initiated post-HRA, comply with the procedural standards of Article 2.

The majority, led by Lord Hope, emphasized the "mirror principle," asserting that the HRA should reflect the evolving interpretations of the Convention by the Strasbourg Court. They deemed the procedural obligation in ilih as sufficiently detached from the substantive obligation to warrant its application under the HRA, even for deaths predating the Act.

In contrast, the dissenting judgment by Lord Rodger maintained the original House of Lords stance in McKerr, arguing that the HRA's non-retroactive nature and the lack of explicit transitional provisions should prevent the application of Article 2 procedural obligations to pre-HRA deaths.

Analysis

Precedents Cited

The judgment extensively analyzed both domestic and Strasbourg Court precedents. Notable among them are:

• McKerr v Chief Constable ([2004] 1 WLR 807): Initially held that procedural obligations under Article 2 do not apply retroactively under the HRA.
• ilih v Slovenia (2009) 49 EHRR 996: Established that procedural obligations can be separate and continue to apply even for pre-ratification deaths, provided specific conditions are met.
• Varnava v Turkey (2008) 50 EHRR 467 and other cases: Further developed the concept of detachable procedural obligations under Article 2.

The Supreme Court's analysis reconciled these precedents, particularly focusing on how ilih redefined procedural obligations and their temporal jurisdiction.

Legal Reasoning

The Court's reasoning pivoted on two main principles:

• Non-Retroactive Principle: The HRA does not apply to acts occurring before its commencement, except as provided in Section 22(4).
• Mirror Principle: The HRA should reflect the substantive and evolving interpretations of the ECHR by the Strasbourg Court.

Although McKerr had previously held that procedural obligations could not impose duties on pre-HRA deaths, ilih's distinction between procedural and substantive obligations prompted the Court to reassess this stance. The majority concluded that when an inquest is held post-HRA, it must adhere to Article 2's procedural standards, irrespective of the death's timing.

The dissent argued that applying ilih's reasoning to the HRA would effectively ignore parliamentary intent, which explicitly restricted the Act's temporal application. They contended that the procedural obligations should not extend to pre-HRA deaths, maintaining consistency with McKerr.

Impact

This judgment has profound implications:

• For Future Inquests: Inquests into deaths prior to the HRA must now comply with Article 2 procedural standards if conducted after the Act's commencement.
• Alignment with Strasbourg: The decision aligns UK domestic law more closely with Strasbourg Court jurisprudence, reinforcing the mirror principle.
• HRA Interpretation: It broadens the scope of the HRA, ensuring that evolving human rights obligations are incorporated, enhancing the Act's effectiveness as a remedial tool.

However, this broad application raises concerns about legal certainty and potential retroactive implications, as highlighted by the dissent.

Complex Concepts Simplified

Article 2 of the European Convention on Human Rights

Guarantees the right to life, imposing two primary obligations on the state:

• Substantive Obligation: To refrain from intentionally depriving life, except as part of a lawful sentence following a conviction.
• Procedural Obligation: To conduct effective investigations into deaths, especially those involving state agents or occurring in suspicious circumstances.

Human Rights Act 1998 (HRA)

Incorporates the ECHR into UK domestic law, allowing UK courts to hear human rights cases. Key provisions include:

• Section 6: Declares it unlawful for public authorities to act in violation of Convention rights.
• Section 22(4): Limits the HRA’s application to acts occurring on or after its commencement date, making it generally non-retroactive.

Mirror Principle vs. Non-Retroactive Principle

- Mirror Principle: The HRA should reflect the scope and interpretations of the ECHR as established by the Strasbourg Court.

- Non-Retroactive Principle: The HRA does not apply to actions or omissions occurring before its enactment, ensuring no retroactive legal consequences.

Detached Procedural Obligations

ilih v Slovenia introduced the concept that procedural obligations under Article 2 can exist independently of the substantive obligation. This means that even if a death occurred before the state's ratification of the Convention, a subsequent investigation can still be bound by Article 2's procedural requirements, provided certain conditions are met.

Conclusion

The Supreme Court's decision in McCaughey & Anor Re Application for Judicial Review represents a significant shift in the interpretation of the HRA in light of evolving ECHR jurisprudence. By embracing the principles established in ilih v Slovenia, the Court ensures that procedural obligations under Article 2 apply to post-HRA inquests into pre-HRA deaths, thereby enhancing the protection of human rights within the UK's legal framework. This alignment underscores the dynamic nature of human rights law and the necessity for domestic legislation to adapt in response to international legal developments.