May 13, 2004Finalised Article 2 Intervenor
The facts of the case
In re McKerr concerned whether or not the investigative obligations found in Article 2 of the European Convention of Human Rights (“ECHR”) are engaged in domestic UK law when a death took place prior to the commencement of the UK Human Rights Act of 1998 (“HRA”).
Gervaise McKerr was shot dead in 1982 by police officers in Northern Ireland. His death is one of several that is alleged to have resulted from a purported “shoot-to-kill” policy of members of the security forces. The McKerr family successfully challenged the failure to hold an Article 2 compliant investigation into the death at the European Court of Human Rights (“ECtHR”) (McKerr v United Kingdom, Application no. 288831/95 ). The ECtHR found unanimously “that there has been a violation of Article 2 of the Convention in respect of failings in the investigative procedures concerning the death of Gervaise McKerr”, a decision that the UK did not appeal.
When no further investigation was forthcoming, McKerr’s family sought an order compelling the Secretary of State for Northern Ireland to hold an effective investigation into the circumstances of his father's death. He based his claim primarily on the provisions of the HRA, even though his father died many years before the HRA came into force.
RSI’s intervention in the case
RSI (then British-Irish Rights Watch) argued that a person is a victim if he or she represents the interests of a person who would themselves be a victim but for his or her death, and that a person in those circumstances is a victim in his or her own right where the state fails to meet its obligations under the procedural guarantees implied into the ECHR. Further, RSI submitted that an award of compensation by the ECtHR does not bring the status of a victim as a victim to an end while the state continues to be in breach of its procedural obligations.
In relation to the retrospectivity of the relevant law, RSI submitted that where there has been no Article 2 compliant investigation, there is a violation of Article 2, which continues in existence until such time as it is remedied by the provision of such an investigation, and that the procedural aspects of Article 2 survive the death of the victim and may be exercised by others on his or her behalf.
The judgment in the case
The House of Lords rejected the family’s application, holding that the investigative duties arising from Article 2 would only be engaged in domestic law where the death itself occurred after the HRA came into force in October 2000. They held that, instead of incorporating the ECHR rights into domestic law, the HRA merely gives effect to these rights in domestic law. As a result the UK courts do not have to apply the HRA retrospectively and require the Government to remedy any breach that occurred prior to the coming into force of the HRA.
The distinction between treaty obligations under the Convention and domestic law rights under the statute was emphasized: although they were expressed in the same terms, they had different sources and took effect from different dates. As, in general, the HRA was not retrospective, there were no domestic, statutory rights relating to Article 2 or Article 6 of the ECHR before October 2000. Their Lordships also rejected the notion that the investigative duties under Article 2 could be “detached” from the duties to protect life.
What does this mean for our work?
RSI intervened, not merely because of its intimate knowledge of the McKerr case, but also because this case had the potential to set an important precedent for a large number of cases in Northern Ireland and elsewhere. According to the Fundamental Review on Death Certification and Investigation (the Luce Review), there were 1,897 cases awaiting an inquest or a decision on whether to hold an inquest in Northern Ireland at the end of 2001.
Sign up to our mailing list for all the latest news, views and events from Rights and Security International.