McCaughey & Anor, Re Application for Judicial Review

Factual and Procedural Background

The Appellants are the next of kin of two individuals (referred to here as “Deceased 1” and “Deceased 2”) who were fatally shot by members of the United Kingdom armed forces on 9 October 1990. Allegations have long circulated that the killings formed part of an unofficial “shoot-to-kill” policy.

No inquest was held for many years. A Coroner was eventually appointed and conducted a preliminary hearing on 14 September 2009. The Appellants asked the Coroner to rule that the forthcoming inquest must satisfy the investigative requirements of Article 2 of the European Convention on Human Rights (“the Convention”). The Coroner declined to rule but stated that he intended to conduct a “vigorous, thorough and transparent” inquest. He later issued a provisional definition of scope limited, in classic Jamieson form, to identifying who died, when, where and by what means.

The Appellants sought judicial review. The High Court (before Judge [Weatherup]) held that it was bound by the House of Lords decision in In re McKerr and refused relief. The Court of Appeal, while also accepting that McKerr was binding, granted permission to appeal so that the issue could be considered by the Supreme Court.

Legal Issues Presented

1. Whether, in light of the Grand Chamber decision in Silih v Slovenia (2009) 49 EHRR 996, the procedural obligation under Article 2 to conduct an effective investigation applies to inquests into deaths that occurred before the Human Rights Act 1998 (“HRA”) came into force on 2 October 2000.
2. If so, whether the Supreme Court should depart from the earlier House of Lords authority of In re McKerr [2004] 1 WLR 807, which held that the Article 2 investigative duty does not arise under the HRA for pre-commencement deaths.
3. Consequently, whether the Coroner is obliged under domestic law to ensure that the forthcoming inquest complies with the Article 2 procedural standards.

Arguments of the Parties

Appellants’ Arguments

• Silih establishes that the Article 2 investigative duty is “separate and autonomous” from the substantive right to life and can apply even where the death predates the relevant human-rights instrument.
• Because the inquest will take place after 2 October 2000, a “free-standing” Article 2 obligation now exists, and section 6 HRA requires the Coroner (a public authority) to act compatibly with that obligation.
• Continuing to follow McKerr would defeat the HRA’s purpose of “bringing rights home” and would oblige the Appellants to litigate in Strasbourg unnecessarily.

Respondents’ Arguments (Police Service & Ministry of Defence)

• In re McKerr remains binding authority unless expressly overruled by the Supreme Court; lower courts were correct to follow it.
• The HRA is not retrospective: section 22(4) precludes reliance on Convention rights in respect of acts occurring before 2 October 2000, and the deaths are the “trigger” for any investigative duty.
• Silih concerns the temporal jurisdiction of the European Court of Human Rights and does not alter the domestic reach of the HRA.

Table of Precedents Cited

Court's Reasoning and Analysis

A majority of the Supreme Court revisited McKerr in light of the doctrinal development in Silih.

• Non-retroactivity vs Mirror Principles: The Court accepted that Parliament did not intend the HRA to apply retrospectively (non-retroactive principle). However, the purpose of the Act was also to ensure that domestic law mirrors Convention obligations (mirror principle). After Silih, the investigative duty is no longer historically tethered to the death; instead, it arises whenever relevant investigative steps occur.
• Free-standing Obligation: Because the inquest will be conducted entirely after 2 October 2000, the United Kingdom is subject, in international law, to a fresh and current Article 2 duty. Interpreting section 6 HRA in line with the mirror principle therefore requires domestic authorities to meet that duty.
• Departure from Precedent: The majority accepted that this outcome departs from the ratio of McKerr, but held that the underlying assumption of that case (that the investigative duty was inseparable from the death) had been overtaken by Silih. Consequently, McKerr could no longer stand.
• Scope of the Inquest: Once Article 2 applies, the Coroner must ascertain not only “by what means” the deceased died but also “in what broad circumstances,” including planning, control, and proportionality of force.

A minority (most fully articulated by Judge [Roder]) dissented, emphasising that:

• Section 22(4) HRA evidences a clear Parliamentary intent that the Act not apply to pre-2000 deaths.
• Importing Silih into domestic law effectively writes an un-enacted transitional provision into the Act.
• Any change of this magnitude should be made by Parliament, not the courts.

Holding and Implications

Appeals ALLOWED. The Court declares that the forthcoming inquests must be conducted in a manner that satisfies the investigative requirements of Article 2 of the Convention.

Implications: The judgment overrules the House of Lords decision in In re McKerr and brings so-called “legacy” inquests into pre-2000 deaths within the scope of the HRA wherever the investigative steps take place on or after 2 October 2000. Practically, Coroners and other investigative bodies must now ensure that such inquiries examine not only the immediate cause of death but also the planning, control and broader circumstances, and must involve the next of kin to the degree required by Article 2. While the ruling affects a limited number of pending inquests, it confirms that domestic courts, rather than Strasbourg, are the primary forum for resolving Article 2 investigative complaints arising after the HRA’s commencement.