Temporal Limits of Article 2 ECHR Investigative Obligation Defined: Exclusion of Legacy Inquests Beyond the Twelve-Year Threshold

Introduction

This commentary examines the Court of Appeal in Northern Ireland’s decision in Bradley & Anor v The Ministry of Defence ([2025] NICA 30), delivered on 6 June 2025. The appeals arose from two legacy inquests into deaths during the Troubles: the 1978 killing of Patrick Duffy and the 1986 killing of Francis Bradley by members of the British Armed Forces. The appellants challenged (1) the exclusion of article 2 procedural obligations on the ground that the deaths pre-dated the Human Rights Act 1998’s temporal scope, and (2) alleged irrational delay by the Ministry of Defence in the Duffy inquest.

Key issues:

Whether article 2 ECHR’s procedural/investigative duty applies to inquests into historic deaths predating the HRA’s 2 October 2000 commencement.
Whether the MoD’s disclosure delay in the Duffy inquest was irrational or in breach of procedural fairness.

Parties:

Appellants: Rosemary Bradley (mother of Francis Bradley) and Margarita Duffy (daughter of Patrick Duffy).
Respondent: The Ministry of Defence (MoD).
Interested coroners and the Coroners Service of Northern Ireland.

Summary of the Judgment

The Court of Appeal, by a majority (Keegan LCJ and Treacy LJ; McCloskey LJ concurring), dismissed both appeals and affirmed Humphreys J’s refusal of judicial review. The court held:

Temporal Exclusion of Article 2: Deaths occurring more than 12 years before 2 October 2000 lie outside the Human Rights Act’s retrospective scope for article 2 procedural obligations. The procedural duty can only apply to deaths within 10 years before that date (subject to a 2-year extension to 12 years in exceptional “seriously deficient original investigation” cases) or to exceptional “Convention values” cases (e.g. war crimes).
No Separate “Legacy” Exception: There is no distinct category of legacy inquests immune from the temporal limit—McQuillan [2021] UKSC 55 and Dalton [2023] UKSC 36 overruling McCaughey [2011] UKSC 20 on that point.
Irrationality Challenge: The MoD’s explanation for resource pressures under the 2023 Legacy Act, accepted by the coroner and the judge, was not irrational or in bad faith.
Guidance for Outstanding Inquests: Inquests already underway or part-heard may proceed under coronial common law practices that ensure full, fair, and fearless fact-finding even if article 2 is excluded.

Analysis

Precedents Cited

McKerr v Armagh Coroner [2004] UKHL 12: Held HRA 1998 non-retrospective for deaths pre-dating 2 October 2000.
Šilih v Slovenia [2009] 49 EHRR 37 (Grand Chamber): Article 2’s procedural duty is detachable and can bind states for pre-ratification deaths if “genuine connection” exists.
McCaughey [2011] UKSC 20: Applied a “mirror principle” of following Šilih, extending article 2 procedural duty to inquests on historic deaths. Declined to follow McKerr’s non-retroactivity.
Janowiec v Russia [2013] 58 EHRR 30 (Grand Chamber): Clarified temporal limit of the “genuine connection” test: normally deaths within 10 years before Convention entry; up to 12 years if “Convention values” test satisfied; and major part of investigation post-entry.
Keyu [2015] UKSC 69: Acknowledged Šilih and Janowiec but left questions open on McCaughey’s survival.
Finucane [2019] UKSC 7: Held article 2 inquiry required for a death 11.5 years before HRA but applied “genuine connection” via significant post-2000 investigative steps.
McQuillan [2021] UKSC 55: Established a clear domestic test: 10-year primary period; up to 12 years only if original investigation was seriously deficient and bulk of investigation occurred after 2 October 2000.
Dalton [2023] UKSC 36: Unanimously affirmed McQuillan’s 12-year outer limit, overruling any continuing effect of McCaughey for deaths beyond that threshold (absent “Convention values”).

Legal Reasoning

The court’s reasoning proceeded as follows:

Apply the “mirror principle” under section 2(1) HRA 1998: national courts must “keep pace” with Strasbourg jurisprudence (Šilih; Janowiec).
Identify the ratio decidendi of McQuillan and Dalton: article 2 procedural duty applies only to deaths within 10 years of 2 October 2000, with a narrow 2-year extension (to 12 years) for severely deficient original investigations, or for exceptional “Convention values” cases.
Determine that McCaughey’s broader approach was displaced by these later decisions—no need for express invocation of the 1966 Practice Statement when the Supreme Court has itself evolved the law via the mirror principle.
Conclude that Bradley (1986) and Duffy (1978) fall outside even the 12-year backstop—article 2 procedural duty thus inapplicable.
Reject the irrationality challenge: the MoD’s resource pressures under the Legacy Act were genuine, tested by affidavit and oral evidence, accepted by the coroner and the judge.

Impact of the Judgment

This decision crystallizes the retrospective scope of article 2 ECHR under domestic law:

Establishes a clear and certain temporal framework: 10-year primary window; up to 12 years only in McQuillan-defined exceptional cases; beyond 12 years, no procedural duty except “Convention values.”
Ends uncertainty over “legacy” inquests—no special carve-out for Northern Ireland cases.
Directs coroners to continue robust inquisitorial fact-finding under common law and existing practice, even where article 2 is excluded.
Limits future human rights challenges to inquests arising from historic Troubles deaths to narrow categories, reducing litigation risk and clarifying funding and resourcing for outstanding inquests.

Complex Concepts Simplified

Article 2 Procedural Duty: An obligation to investigate deaths effectively when state agents are involved.
Mirror Principle: UK courts must “mirror” or follow clear Strasbourg rulings when interpreting Convention rights.
Genuine Connection Test: Requires a close link between the death date and the Convention’s domestic entry date; defined by Janowiec and refined by McQuillan.
Convention Values Test: A high-threshold exception allowing investigation of very serious crimes (war crimes, genocide) regardless of time lapse.
Irrationality in Public Law: A Wednesbury standard challenge requiring proof that a decision is so unreasonable that no reasonable authority could have made it.

Conclusion

The Court of Appeal’s decision in Bradley & Anor v MoD gives definitive guidance on the temporal application of article 2 ECHR procedural obligations under the Human Rights Act 1998. It confirms that inquests into Troubles-era deaths more than 12 years before 2 October 2000 are exempt from article 2’s investigatory duty (absent “Convention values”). The judgment also rejects challenges to MoD delays in disclosure as irrational. For the remaining legacy inquests, coroners must continue to apply established inquisitorial practices, ensuring full, fair, and fearless fact-finding even where human rights obligations no longer apply.